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May 28, 1974

UNITED STATES of America, Plaintiff,
31.45 ACRES OF LAND, WHITMAN COUNTY, WASHINGTON, and J. B. Evans, et ux., et al., Defendants. UNITED STATES of America, Plaintiff, v. 43.50 ACRES OF LAND, WHITMAN COUNTY, WASHINGTON, and Carol Jean Wilson, et al., Defendants

Neill, Chief Judge.

The opinion of the court was delivered by: NEILL

NEILL, Chief Judge.

 The Government seeks by a motion in limine to restrict respondents' evidence at trial as to just compensation. Specifically, the Government, under the aegis of United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336 (1943), asks that respondents be prohibited from including as an element of value of the land herein taken by the Government, any increment in value of such lands attributable to the project for which the lands have been taken.

 The project for which lands are being taken is the development of the lower Snake River in southeastern Washington from its mouth at the Columbia River to the confluence of the Snake and Clearwater Rivers in Idaho. The main objectives of this multipurpose development are to provide slack water transportation along that stretch of the Snake River, irrigation and generation of power. To meet these objectives, Congress has approved and financed a system of four dams, fishways, navigation locks and channelization. Inherent in this program is the raising of water levels behind the dams and the resultant inundation of the properties, including the tracks of the Camas Prairie Railroad and a public road. One such dam is the Lower Granite Dam. The pool created by this dam causes inundation of part of respondents' property and the need to relocate the railroad and the county road through respondents' land. To provide for such relocation, the Government in 1964 purchased one tract from some respondents and in 1966 acquired from respondents other tracts by way of eminent domain. In 1972 the government commenced this action to obtain title to respondents' adjacent lands for railroad and road relocations. Thus is raised the issue of a "second taking". A chronology of project plans will serve to delineate the issue.

 In 1938 the Army Corps of Engineers submitted a report to Congress on the subject of the development of the Snake River system, which has been commonly referred to as the "704 Report". This report is general and contains no reference to such details as railroad and road relocation. In 1947 the Corps of Engineers submitted a further report to Congress. This report recommended the four dam plan for the lower Snake River and included the matter of relocation of the railroad and the county road. Subsequent Corps reports to Congress gave further detail as to such relocation. All relocation proposals (Design Memoranda) prior to 1970 contemplated relocation of the railroad and the county road adjacent to or near the shoreline of the proposed pool. Between 1938 and 1970 many changes in detail were made in the project, including a raising of the water (pool) level. For purposes of this action, however, it is pertinent to observe that all such changes kept the relocations within the "take line" on which these parties dealt in the 1964 and 1966 land acquisitions.

 Between 1966 and 1970, two new factors affected the plans for relocation of the rights-of-way. First, the State of Washington, by legislative action, changed the road from a county road to a state highway. This change altered alignment requirements and increased the width and surface standards for the road. Secondly, port districts requested that road and railroad relocation be away from the river to permit development at the water's edge of grain storage, loading facilities and other industrial developments. This change of location of the road and railroad contravened the recommendations of the Corps of Engineers and was apparently occasioned by the demands of interested agricultural and port groups as well as intercession by some of the state's Congressional delegation. Thus, following the initial acquisition of a portion of respondents' lands in 1964 and 1966, the proposed relocation of the road and railroad was changed. This new relocation required acquisition of these additional lands of respondents.

 The pertinent principle laid down in Miller, is

If a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement.
The question then is whether the respondents' lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought not to gain by speculating on probable increase in value due to the Government's activities.

 The court in Miller affirmed the holding in Shoemaker v. United States, 147 U.S. 282, 13 S. Ct. 361, 37 L. Ed. 170.

If, in the instant case, the respondents' lands were, at the date of the authorizing Act, clearly within the confines of the project, the respondents were entitled to no enhancement in value due to the fact that their lands would be taken. If they were within the area where they were likely to be taken for the project, but might not be, the owners were not entitled, if they were ultimately taken, to an increment of value calculated on the theory that if they had not been taken they would have been more valuable by reason of their proximity to the land taken. In so charging the jury the trial court was correct.

 Later, in United States v. Reynolds, 397 U.S. 14, 90 S. Ct. 803, 25 L. Ed. 2d 12, the Supreme Court held that the issues of whether the subject lands were within "the scope of the project" as set forth in Miller, is a question to be determined by the Court.

 Respondents call the Court's attention to a number of Miller cases wherein district and circuit courts have considered this "second take" issue. e.g. United States v. 327 Acres of Land, 320 F. Supp. 844, 14 A.L.R.Fed. 799 (N.D.Ga.1971); United States v. 2,353.28 Acres of Land, 414 F.2d 965 (5th Cir. 1969); Scott v. United States, 146 F.2d 131 (5th Cir. 1944); United States v. 959.68 Acres of Land, 415 F.2d 401 (3rd Cir. 1969); United States v. 244.48 Acres of Land, 251 F. Supp. 871 (W.D.Penn.1966); Calvo v. United States, 303 F.2d 902 (9th Cir. 1962). Plaintiff cites United States v. Crance, 341 F.2d 161 (8th Cir. 1965), in support of its position. In these cases courts have reached conclusions based on such factors as the definiteness of project boundaries at the time of Congressional approval of the project, the time lapse between the first and second taking, the information given in public announcements, hearings and publication, and change in governmental policy which expands the scope and object of the project. The varying facts and circumstances facing each ...

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