United States v. 344.85 Acres of Land, More or Less, Situate in Perry County, State of Indiana(roy H. Mullen and Charles L. Mogan, Jr.)
384 F.2d 789
7th Cir.
1967
Check Treatment

*1 transferable certificates gave the certif- Piazza in another state. power at- to Fabiano with icates Lundeberg authorizing

torney to sell where the sale as to without limitation Knowledge place. could take Judge, Swygert, Circuit dissented. required to be trans- certificates were may ported for transfer of the state out conspirators. imputed Pereira 9,1, v. (1954); Halfen v. questions have been raised Other are deemed

which were considered and

to be merit. without trial. for a new

Reversed remanded America,

UNITED STATES of Plaintiff-Appellant, LAND,

344.85 ACRES OF OR MORE LESS, COUNTY, Situate IN PERRY (Roy STATE OF INDIANA and Charles L. H. Mullen Mogan, Jr.), Defendants- Appellees. Appeals

United States Court of

Seventh Circuit.

June Clark, Department B.

Edmund Washington, C., Justice, Richard P. D. *2 Weisl, Jr., price Mogans Stein, Atty., paid L. for U. Edwin their farm in S. Annakin, Atty. Gen., Joseph expert testimony There Asst. W. was for the Ind., Atty., compa- Indianapolis, Asst. U. S. landowners that no “similar or Roger Marquis, Atty., Department P. rable” sales could be found for an indica- Justice, Washington, C., appellant. tion of for D. the Mullen experts land. The estimates Keck, Mitchell, M. David William L. respect with to both easements were Evansville, Ind., Keck, for Mitchell & crop based on factors other than sales: Mogan, defendants-appellees, L. Charles suitability, production capacity, Mogan. Jr., and Bernita experience their appraising farms Judge, HASTINGS, Before Chief the area. The awards within the were SWYGERT, and KILEY and Circuit range obviously of the estimates and were Judges. upon based of the land- experts. owners’ Judge. KILEY, Circuit generally That was the eviden government appealed The from has tiary frame in which instruction 5No. judgments awarding compensation was offered and re proceedings condemnation to owners fused the district court. The refusal flowage farm land in Indiana taken for give principal instruction is the easements in connection the Can- with government’s basis of the claim of re Project for nelton Lock and Dam control versible error. The instruction reads: of Ohio floods. affirm the River We judgments. open A sale in the market of the taking property The filed question reasonably declarations of were near May 17, 1965, taking for the condemnation time date of is the best evi- of the Lacking easements over 103.5 acres1 dence of its fair market value. the 213.2 Mullen farm and 9.33 acre free market sale of the Mogan reasonably acres farm near the 64 acre itself near the of tak- date ing, Cannelton, open A decided on Indiana. sales on the market of simi- 2, 1966, just compensation March lar or property reasonably $13,000 taking for the Mullen easement and near in time to the date of $4,500 Mogan ap for the easement. This best evidence of fair market peal being followed. condemned. course, Of there will be differences makes two con- size, shape, location and immediate tentions : that com- reversible error was surroundings pieces property, of two mitted perhaps differences in other re- government’s instruc- offered spects well, yet to the extent 5; ruling tion No. and that resulted comparable, are similar or departure in a from market as the price for which one sold on the just compensation. measure open market is the best testimony by expert There was wit fair market the other. “Sim- gov nesses the land and the owners bm, ilar” “identical,” does not mean ernment on the market having Obviously a resemblance. no taken, which was sole issue properties exactly two alike jury. Ham, for the United States v. every respect, pre- but this does not gov F.2d being comparable. vent their Sales experts ernment their based estimates constitute the market. You must re- upon value of the Mullen easement ject them as comparable” sales, “similar or and of the Mogan primarily you upon easement turn to other means de- 1505-E-2, 1505-E-l, 1. Tracts Nos. 421-E-l Nos. 1505- and 421-E-2. Tracts .1505-E-4, E-3, 1505-E-5 and 1505-E-6. rulings upon (Emphasis In United evidence. termining value. Miller, 369, 63 S.Ct. added.) 317 U.S. States v. (1943), questions No. 5 of instruction The first sentence and an categorically, jury, that a sale tells here; and in Olson v. United not relevant open near *3 of mar- in time is the best evidence only question (1934), 1236 the L.Ed. states ket value. The second sentence exclusion of evidence decided concerned categorically that, lacking of sale a property. In of actual of condemned use question, open property mar- the in 472, Lowrie, F.2d 246 comparable” ket sales of “similar (4th that 1957), court said the Cir. property reasonably in time are near “one if of sales is not admitted evidence qualified the This is best evidence. persuasive indications of the most says in which somewhat the next sentence (Emphasis is lost. market values” to that sales evidence are the best added.) v. 5139.5 And they comparable. the the extent are But 659, Land, 662-663 Acres concludes: constitute instruction “Sales (4th 1952), an court said that Cir. the reject as them the market. You must “generally that instruction effect you turn speaking” furnish the most recent sales to market other means of fixing market value desirable basis if found the other value.” the Thus common rule well as “embodied sound as comparable, it not sales all could were at sense,” that instruction” and “some such under instruction consider evidence proper on retrial. would be investment, productivity, return on Ham, F.2d at In United States v. fertility or other 270, quoted that com rule a the presented by value the landowners’ ex- usually parable the sale “is best perts. quoted the and of market value available” We think as the term “best evidence” 95, TVA, 108 F.2d rule from Welch v. referring to used instruction No. 5 1939): (6th at arm’s Cir. “Sales proof misleading is length the best similar that not court did err the evidence of market value.” But In that instruction. holding in that Ham was the exclusion government this court the for a contends comparable sales was of all evidence of “principle,” not that sales And 187 F.2d at 269. reversible error. states, “best evidence” as the Onego Corp. v. United but indica- that such are the “best sales 1961), 461, the state F.2d Cir. tion” The do not value. landowners ment the of market that “best evidence” dispute principle. timely comparable sales was value was No case com- cited dictum, since no such evidence there was pels giving of If this instruction. there. given destroyed it could have effect “quest” trial at government experts cross-examination for the fair market value upon to, or com- testified damaged. taken and Kinter v. pelled to exclude (3d 156 F.2d 5 experts of other indica- landowners’ willing buyer Market what tions of of the ex- because willing pay would in cash to a seller. istence of the sales. 374, Miller, 317 United States v. U.S. (1943). language There is cited 63 S.Ct. decisions just gives requirement oblique sup- com which constitutional port pensation “includes all elements to instruction No. 5. But none of property, approved it does them in the but an instruction in the sub- inhere fairly language deter stantial of instruction exceed No. States, 292 U.S. Most mined.” Olson v. United of the cases cited are concerned prop- perts of value from at It is the their estimates at erty, it, prior not the cost is safe- sales. guarded by state and federal constitu- jury that the The court instructed the Supreme Olson tions. The Court as a considered instructions be must prevailing said that since there were no case whole, and that the sole issue prices flowage there just compen it amount of before was the through sale, barter or the market value sation that should awarded be had to all be estimated under sum court described landowners. The been circumstances that could have taking by the nature and extent of government obtained for it. And all considerations gave instruc stock fairly substantially that are involved regarding counsel or tions statements bargaining into should taken credibility, court. It instructed Id. at account. 54 S.Ct. 704. among factors bear a caution that *4 ing credibility lack of or were “means on government’s We see no merit in the * * * knowing how means of far, the facts argument second that court are either if at all [the witnesses] departed instruction No. 5 * * * supported or or contradicted from market of the measure as ”** * * * inconsistent statements. just compensation. “just com Further instructions defined pensation” persuaded We not first of all including all elements as presented that the evidence factual no the to the value inherent opinions basis for the value of the land the at extent of fair market the they owners’ It is that witnesses. true taking; date of defined fair opinions upon did not com base their price equivalent that the in cash or as above, parable sales, pointed but as we out probably paid its for have would been testimony they the did offer was relevant highest purchasers with and best use that question value, and willingly buy ability and to would desire opinions where there are based wanting pay to one at offered a sale comparable sales, testimony other bear transaction; sell, that in a free both ing question on not the of market value is determining the fair market value the ipso excluded. only jury opinions facto not should consider but the on market value various witnesses question therefore, value, was may in that aid all other determination, which evidence jury function, for despite the and its the location, environ such as testimony comparable by govern- sales uses, suitability particular ment, for witnesses, testimony weigh ment was to potential probabilities for reasonable of both sides of the amount of search evidence to future uses shown the compensation probably that would have taking; that exist at the time of accepted been offered and in an arm’s only part where of landowners’ length taking. transaction at the time compensation awarded is taken should be right ignore would no to have part of the for the fair market value testimony offered the landowners’ damage,” actually plus taken “severance witnesses it not because was based the in the fair market reduction comparable though on on sales even con- remainder.3 the might testimony sideration of the it great weight attach or little vis-a-vis instructions We conclude that And it depart proper of sales. was en- did not from the titled to take into “just compensation” consideration the effect value measure adequate cross-examination of ex- eir- and that tímely comparable It is true that the instructions sales of gave “comparable did not use the words of- But “best evidence.” sales” and that the court stated a no instruction fered colloquy jury’s presence except outside the his disagreement describing with decisions

793 obligated improper request and do not offend to recast an of this case cumstances Laundry unobjectionable if, against Co. so that it in Kimball the rules light 5-6, 1, States, has been 338 U.S. S.Ct. the evidence which v. United subject 1434, (1949); introduced, matter 93 L.Ed. 373, Miller, request necessary S.Ct. at is a element v. 317 U.S. 276; U.S. at instructions as a v. United whole. Olson 704; v. United States S.Ct. question that, can no but There Land, 660, 665 Acres of 362 F.2d 60.14 produced view of (3d 1966); v. Leavell tendered, Government Inc., Ponder, & to an instruction case was entitled denied, Cir.), cert. general to effect Onego (1961); 6 L.Ed.2d 855 parcels furnishes recent sales similar Corp. 295 F.2d at desirable, reasonable, for a basis even determining con- the fair market government was We hold demned land. proffered not instruc entitled to have its a new I given would reverse and remand jury, tion No. 5 to trial. rejecting that district court did err fairly instruction, and that properly respect instructed with issue of

standard for the sole just compensation land which

owners entitled for *5 properties

contained across their government.

Affirmed. GATLIN, Talmadge R. Gatlin Mulfred S. Judge (dis- SWYGERT, Circuit Gatlin, Appellants, Shelby and J. senting) . agree Labor, majority Secretary I WIRTZ, Willard W. Labor, Department of requested Government’s instruction with Appellee. regard prop- to recent sales of similar properly erties the dis- refused By stating

trict court. that “sales con- Appeals Court telling jury stitute the market” and Circuit. Fifth reject it must “as 2, 1967. Nov. * * * turn[ing] to other means of value”, the instruction mandated the competent

to exclude other from

consideration. judge however, erred, district giving proper

subject sales.

Because his attention was directed to subject by instruction, the refused

judge’s duty went further than

refuse to the instruction as drafted. obligation properly trial court adequately instruct on the applicable discharged

law ato case is not

merely by granting

requested The court instructions.