United States of America v. 10.64 ACRES OF LAND, more or less, situate in STARR COUNTY, STATE OF TEXAS et al
Filing
119
OPINION AND ORDER Disbursement Hearing set for 5/14/2021 at 09:00 AM before Judge Micaela Alvarez (Signed by Judge Micaela Alvarez) Parties notified.(klopez, 7)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
February 25, 2021
Nathan Ochsner, Clerk
UNITED STATES OF AMERICA,
§
§
Plaintiff,
§
§
VS.
§
§ CIVIL ACTION NO. 7:08-cv-00066
10.64 ACRES OF LAND, more or less, in §
STARR COUNTY, Texas; and Jesse
§
Clarke, et al.,
§
§
Defendants.
§
OPINION AND ORDER
The Court now considers the “United States of America’s Brief on Just Compensation as
to Tract RGV-RGC-2042”1 and the minutes from the just compensation hearing on January 12,
2021.2 After considering the brief, record, and relevant authorities, the Court holds that
$7,189.00 is just compensation for the taking in this case.
I. BACKGROUND AND PROCEDURAL HISTORY
This is an eminent domain case commenced under the Declaration of Taking Act3 in
2008 concerning Tracts RGV-RGC 2042, RGV-RGC 2043, RGV-RGC 2044, collectively
identified as Tract RGV-RGC 2020 (Tract 2020), which totals 1.40 acres, located in Starr
County, Texas.4 On July 1, 2008, the United States deposited $4,200.00, the estimated just
compensation for Tract 2020, into the Court’s Registry,5 immediately vesting title in the United
1
Dkt. No. 107.
Minute Entry (Jan. 12, 2021).
3
See 40 U.S.C. §§ 3111–18.
4
Dkt. Nos. 1 & 2.
5
Dkt. No. 5.
2
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States.6 In October 2012, the Court subsequently consolidated this case with member case, No.
7:08-cv-197.7 The case was then stalled until 2019, when Tract 2020 was broken up into Tracts
RGV-RGC 2042 (Tract 2042), RGV-RGC 2043 (Tract 2043), and RGV-RGC 2044 (Tract
2044).8 The United States and interested parties subsequently resolved all issues relating to
Tracts 2043 and 2044,9 leaving only Tract 2042 unresolved.
On March 9, 2020, the Court issued an order and opinion determining title and ownership
interest as to Tract 2042 and set a just compensation hearing for May 12, 2020.10 Therein, the
Court determined that Defendant Janie Lopez, Independent Executor of the Will and Estate of
Lilia L. Johnston and Martin Johnston, has a 8.43 percent interest in Tract 2042; and Jesse
Clarke has a 44.12 percent interest in Tract 2042.11 The remaining interest owners could not be
located.12 The United States entered into a letter agreement with Janie Lopez in which she agreed
to the United States valuation of just compensation for Tract 2042.13 The only Defendant
opposed to the United States’ just compensation valuation is Jesse Clarke.14
The Court continued the parties’ May 12th just compensation hearing sua sponte until
June 30, 2020 due to the COVID pandemic.15 The Court then continued the hearing another four
times at the request of the parties to allow Defendant Jesse Clarke to attend the hearing in
person.16 In December, the parties again requested to continue the hearing but agreed to attend
6
See 40 U.S.C. § 3114(b)(1).
Dkt. No. 19.
8
Dkt. No. 26.
9
Dkt. Nos. 89 & 94.
10
Dkt. No. 101 & 115.
11
Dkt. No. 115 (Amended Order and Opinion).
12
Dkt. No. 115 at 8.
13
Dkt. No. 107, citing 107-2.
14
Dkt. Nos. 107, 114.
15
Dkt. No. 103.
16
Dkt. Nos. 106, 108, 111, 114.
7
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the rescheduled hearing remotely.17 The Court subsequently held the January 12, 2021 hearing
remotely, as requested by the parties, but Defendant Jesse Clarke did not appear.18 During the
hearing, the United States agreed to rest on its brief and the evidence submitted with its brief and
the supplemental evidence submitted in anticipation of the Jan. 12, 2021 hearing. 19 Also during
the hearing, the United States and the Attorney General of Texas requested a disbursement
hearing set sixty days after just compensation is decided. Defendant Jesse Clarke has not
proposed an alternative just compensation valuation or submitted a brief or any other evidence.
Thus, the Court now turns to determine the issue of just compensation based on the brief and
evidence provided by the United States.20
II. DISCUSSION
a. Legal Standard
Under the Fifth Amendment to the United States Constitution, private property shall not
be taken “for public use, without just compensation.”21 Just compensation is to be just to the
landowner and to the public which must pay for the condemnation by eminent domain.22 “Just
compensation . . . means in most cases the fair market value of the property on the date it is
appropriated.”23 “[T]he underlying principle is that the dispossessed owner ‘is entitled to be put
in as good a position pecuniarily as if his property had not been taken. He must be made whole
but is not entitled to more.’”24 “Under this standard [of fair market value], the owner is entitled
17
Dkt. No. 113.
Minute Entry (Jan. 12, 2021).
19
Id.
20
Dkt. Nos. 107 & 117.
21
U.S. CONST. amend. V (the Takings Clause).
22
Bauman v. Ross, 167 U.S. 548, 574 (1897) (quoting Searl v. Sch. Dist. No. 2, 133 U.S. 553, 562 (1890) (Fuller,
C.J.)).
23
Kirby Forest Indus. v. United States, 467 U.S. 1, 10 (1984).
24
United States v. 320.0 Acres of Land in Monroe Cnty., 605 F.2d 762, 780 (5th Cir. 1979) (quoting Olson v. United
States, 292 U.S. 246, 255 (1934)).
18
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to receive what a willing buyer would pay in cash to a willing seller at the time of the taking.”25
“[I]n general, comparable sales constitute the best evidence of market value . . . the more
comparable a sale is, the more probative it will be of the fair market value of the condemned
property.”26 A comparable sale is defined as a sale “from a willing seller to a willing buyer of
similar property in the vicinity of the taking at or about the same time as the taking.”27 Evidence
of fair market value can come from evidence of comparable sales and from expert testimony as
to the value of the subject property.28
“In determining the market value, this Court must look not only at the present use of the
property, but also at the highest and best use for which the property is adaptable and needed.”29
“Ordinarily, the highest and best use for property sought to be condemned is the use to which it
is subjected at the time of the taking. This is true because economic demands normally result in
an owner's putting his land to the most advantageous use.”30 When a condemnee31 attempts to
claim that the highest and best use for the property taken is something other than what the
property is currently used for, the Fifth Circuit has held that the burden is on the condemnee to
produce credible evidence that, at the time of taking, the use claimed was “practicable” and that
“there was a reasonable likelihood that [the property] would be so used in the reasonably near
25
Id. (internal quotation marks and quotation omitted); accord United States v. 50 Acres of Land, 469 U.S. 24, 29
(1984) (quotation omitted) (“The Court has repeatedly held that just compensation normally is to be measured by the
market value of the property at the time of the taking contemporaneously paid in money.”); 5th Cir. Pattern Civ.
Jury Instruction 13.3 (2014) (internal quotation marks omitted) (“Fair market value means the amount a willing
buyer would have paid a willing seller in an arms-length transaction, when both sides are fully informed about all
the advantages and disadvantages of the property, and neither side is acting under any compulsion to buy or sell.”).
26
320.0 Acres of Land, 605 F.2d at 798.
27
United States v. 8.41 Acres of Land in Orange Cnty., 680 F.2d 388, 395 (5th Cir. 1982) (citing United States v.
Trout, 386 F.2d 216, 222–23 (5th Cir. 1967)).
28
320.0 Acres of Land, 605 F.2d at 798 & n.64.
29
8.41 Acres of Land, 680 F.2d at 394; see United States v. Causby, 328 U.S. 256, 261 (1946) (“It is the owner's
loss, not the taker's gain, which is the measure of the value of the property taken.”).
30
United States v. Buhler, 305 F.2d 319, 328 (5th Cir. 1962).
31
See Condemnee, BLACK’S LAW DICTIONARY (11th ed. 2019) (“One whose property is expropriated for public use
or taken by a public-works project.”).
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future.”32 Evidence of highest and best use that is not credible, for example an assertion that
residential development is the highest and best use when the property in question is next to an
airfield and has poor access and stagnant population growth, should be rejected.33
When the taking is temporary, “the Just Compensation Clause of the Fifth Amendment
requires that the government pay the landowner for the value of the use of the land during this
period,”34 or in other words “determine the figure which would compensate [the condemnee] for
the loss it suffered by being deprived of this property for this period of time.”35 Market rental
value is generally the appropriate measure of compensation for a temporary taking. 36 However,
even if a taking is temporary, it may effect a complete deprivation of profitable use of property. 37
“Considerations that may not reasonably be held to affect market value are excluded.”38
“In making [a just compensation] estimate there should be taken into account all considerations
that fairly might be brought forward and reasonably be given substantial weight in such
bargaining,” but ostensible events affecting value that are speculative or not shown to be
reasonably probable are excluded from the ascertainment of value.39 The considerations that are
excluded from just compensation include special or sentimental value to the condemnee, the
change in value of separate tracts that are affected by the taking,40 appraisal and attorneys’ fees,
32
320.0 Acres of Land, 605 F.2d at 814; accord United States v. 62.50 Acres of Land in Jefferson Par., 953 F.2d
886, 890 (5th Cir. 1992) (“Potential uses must overcome a presumption in favor of the existing use. A landowner
can overcome this presumption only by showing a reasonable probability that the land is adaptable and needed for
the potential use in the near future.”).
33
United States v. 158.24 Acres of Land, More or Less, in Bee Cnty., 515 F.2d 230, 233 (5th Cir. 1975).
34
First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 319 (1987).
35
United States v. Michoud Indus. Facilities, 322 F.2d 698, 708 (5th Cir. 1963).
36
Kimball Laundry Co. v. United States, 338 U.S. 1, 7 (1949).
37
See id. at 14 (discussing that the condemnee’s investment “remained bound up in the reversion of the property” so
the United States “could no more completely have appropriated the [condemnee’s] opportunity to profit” than by
putting the condemnee completely out of business for a period of time).
38
United States v. 50 Acres of Land, 469 U.S. 24, 29 (1984) (quotation omitted).
39
Olson v. United States, 292 U.S. 246, 257 (1934).
40
See United States v. 101.88 Acres of Land, More or Less, Situated in St. Mary Par., La., 616 F.2d 762, 772 (5th
Cir. 1980) (holding that a landowner is entitled only to recover for the actual condemnation and not for any theory of
damages to remaining land or damages that will be incurred in the future).
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loss of profits, damage to goodwill, and the expense of relocation or other consequential losses. 41
However, “the opinion testimony of a landowner as to the value of his land is admissible without
further qualification. Such testimony is admitted because of the presumption of special
knowledge that arises out of ownership of the land.”42 Although the Court will not accept
speculative “value to me” testimony from a landowner, so long as the landowner’s opinion has a
rational foundation and is not contradicted by the landowner’s testimony, it is probative of the
market value of the land.43 The rule is that if “a proffered potential use is not reasonably
practicable or probable, so that no reasonably minded trier of fact faithfully applying the law
could find that it represents an element of fair market value,” the evidence will not be
considered.44 “The burden of establishing the value of the land sought to be condemned [rests]
with the landowner.”45 If the landowner fails to establish that just compensation is higher than
the United States’ estimate, the Court may rely exclusively on the United States’ evidence.46
b. Analysis
In the instant case, though Jesse Clarke indicated over multiple months that he intended
to challenge the United States’ valuation of just compensation and requested four separate
continuances to be able to present evidence regarding compensation to the Court,47 he did not
41
Tenn. Gas Pipeline Co., LLC v. Permanent Easement for 7.053 Acres, 931 F.3d 237, 247–48 (3d Cir. 2019)
(collecting United States Supreme Court cases); see United States v. Gen. Motors Corp., 323 U.S. 373, 379 (1945)
(“The rule in such a case is that compensation for that interest does not include future loss of profits, the expense of
moving removable fixtures and personal property from the premises, the loss of good-will which inheres in the
location of the land, or other like consequential losses which would ensue the sale of the property to someone other
than the sovereign.”).
42
United States v. 329.73 Acres of Land in Grenada & Yalobusha Cntys., 666 F.2d 281, 284 (5th Cir.
1982) (citing United States v. 3,698.63 Acres of Land, 416 F.2d 65, 67 (8th Cir. 1966) & United States v. Sowards,
370 F.2d 87, 92 (10th Cir. 1966)).
43
See Sowards, 370 F.2d at 92; United States v. 79.20 Acres, 710 F.2d 1352, 1357 (8th Cir. 1983) (citing 3,698.63
Acres, 416 F.2d at 66-67).
44
320.0 Acres of Land, 605 F.2d at 818.
45
United States v. 62.50 Acres of Land in Jefferson Par., 953 F.2d at 890 (5th Cir. 1992) (citing United States ex rel.
Tenn. Valley Auth. v. Powelson, 319 U.S. 266, 273–76 (1943)).
46
United States v. 8.41 Acres of Land in Orange Cnty., 680 F.2d 388, 395 (5th Cir. 1982).
47
See Dkt. Nos. 104, 108, 110, 113.
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appear for the January 12, 2021 just compensation hearing. 48 Furthermore, he did not file a brief
on the issue or any evidence. He, therefore, failed to meet his burden to establish just
compensation is higher than the United States’ estimate. As such, the Court may rely exclusively
on the evidence presented by the United States.49
In its brief, the United States provides a just compensation valuation of $7,189.00 for the
fee simple taking of Tract 1042. In support of this estimation, the United States provides the
Appraisal Review Report performed by Thurman Schweitzer, Staff Review Appraiser of the U.S.
Army Corps of Engineers, which establishes the fair market value of the tract on July 1, 2008,
the date of taking, at $7,189.00.50 Thus, the Court finds the United States offered sufficient
evidence to establish just compensation for the fee simple taking on Tract RGV-RGC 2042 at
$7,189.00.
III. HOLDING AND CONCLUSION
In light of the foregoing, the Court finds $7,189.00 to be just compensation for the fee
simple taking of Tract RGV-RGC 2042. Further, in light of the parties’ request at the January
12th hearing,51 the Court ORDERS the parties to appear for disbursement hearing on Friday,
May 14, 2021 at 9 a.m.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 25th day of February 2021.
___________________________________
Micaela Alvarez
United States District Judge
48
Minute Entry (Jan. 12, 2021).
8.41 Acres, supra note 46.
50
Dkt. No. 107-3.
51
Minute Entry (Jan. 12, 2021).
49
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