United States of America v. 0.64 Acre of Land, More or Less, Situate in Logan County, State of West Virginia et al

Filing 50

MEMORANDUM OPINION AND ORDER granting the United States' 31 MOTION to Withdraw Jury Demand in these consolidated actions; directing that the United States has no further financial obligation to the interested parties; that the United States is directed to serve upon the interested parties, by certified mail return receipt requested, by 9/8/2015, a copy of this memorandum opinion and order; that the interested parties are noticed that their failure to object in writing to the proposed dist ribution herein by 9/28/2015, will result in the entry of a Judgment directing the Clerk to pay out those sums listed herein to the distributes set forth on page 10 hereof. Signed by Judge John T. Copenhaver, Jr. on 8/25/2015. (cc: counsel of record; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

UNITED STATES OF AMERICA
Plaintiff,
v.

Civil Action No. 2:14-17685

0.64 ACRE OF LAND, MORE OR LESS,
SITUATE IN LOGAN COUNTY,
STATE OF WEST VIRGINIA, and
W. P. HENRITZE,
Defendants

UNITED STATES OF AMERICA
Plaintiff,
v.

Civil Action No. 2:14-17688

0.19 ACRE OF LAND, MORE OR LESS,
SITUATE IN LOGAN COUNTY,
STATE OF WEST VIRGINIA, and
W. P. HENRITZE,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending is the United States’ motions to withdraw its
jury demands in these consolidated actions, filed February 9,
2015.

It is ORDERED that the motions to withdraw be, and hereby

are, granted.

On May 26, 2015, the court conducted a bench trial.
No interested party, and no party other than the United States,
appeared for trial.
I.

FINDINGS OF FACT

The following discussion represents the court’s
findings of fact.

Each finding is made by a preponderance of

the evidence.
On June 5, 2014, the United States instituted the
above-styled condemnation actions seeking to take the named
parcels of property.

The take will facilitate implementation of

the Island Creek Flood Damage Reduction Project on the Island
Creek channel of the Guyandotte River.

On March 11, 2015, the

cases were consolidated.
Various individuals and entities having a potential
property interest in the parcels which are the subject of this
consolidated condemnation proceeding were notified of the
matters by certified mail and by publication.

Attached to the

complaints in condemnation in both cases at schedule E are lists
of potentially interested parties.

They are as follows:

Unknown heirs, executors, administrators, devisees,
legatees and assigns of W.P. Henritze, deceased.
Billie Jean Henritze Nance, Widow
2

Betty Jane Henritze Ayers, Widow
John Clarke Wallace, Jr., Co-Trustee,
Katherine Osborne Wallace, Co-Trustee,
John S. Henritze Testamentary Trust
John Clarke Wallace, Jr.
Jayne Dalziel Wallace
Susan Stuart Wallace (care of her attorney in fact)
Katherine Osborne Wallace
West Virginia Real Estate (.64) or H3, LLC (.19)
Logan County Assessor
The United States has certified that it published
notice to the unknown heirs, executors, administrators,
devisees, legatees and assigns of W.P. Henritze and the unknown
spouse of W.P. Henritze inasmuch as a diligent inquiry and
search for those individuals did not produce their whereabouts.
Specifically, on August 12, 2014, the United States filed an
affidavit of publication from Norman O. Sinclair, Regional
Director of the Logan Banner.

Mr. Sinclair averred that the

notice, addressed to the heirs of W.P. Henritze and the unknown
spouse of W.P. Henritze, was published in the Logan Banner three
successive times, namely, on July 23, July 30, and August 6,
2014.

The court finds that all interested parties have been

given notice and an opportunity to be heard.

The only party

which has responded to the complaint in condemnation or

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otherwise appeared herein is the Auditor of the State of West
Virginia, who was dismissed by agreed order on September 24,
2014.

Additionally, Logan County will not seek to collect any

delinquent taxes on the subject properties.1
The United States desires to take the fee simple
interests in the subject properties, for use in activities
involved in the construction, repair, and rehabilitation of the
Island Creek Flood Damage Reduction Project.

In the .64 case,

the parcels being taken, as platted on Schedule D to the
complaint in condemnation, consist of lots 218, 218-2, 218-3,
and 218-4.

The legal description of the parcels is found in the

declaration of taking, which was also filed June 5, 2014.

On

June 9, 2014, the court authorized the United States to deposit
a check in the amount of $8,250 as estimated just compensation
for the taking of the estates and interests proceeded against.
That sum is presently being held in the registry.
In the .19 case, the parcel being taken, as platted on
Schedule D to the complaint in condemnation, consists of lot
231.

The legal description of the parcel is found in the

1

On July 13, 2015, at the court’s request, the United
States filed a declaration that no property tax liability
exists. It attached a letter from the Logan County Assessor’s
Office, stating, inter alia, “The purpose of this letter is to
assure you that Logan County will . . . not make any claim for
back taxes on this property.” (Ex. A at 1).
4

declaration of taking, which was also filed June 5, 2014.

On

June 9, 2014, the court authorized the United States to deposit
a check in the amount of $2,000 as estimated just compensation
for the taking of the estates and interests proceeded against.
That sum is presently being held in the registry.

Following

deposit of the just compensation amounts in both cases, the
court ordered on July 25, 2014, that fee simple title and
possession in tracts 218, 218-2, 218-3, 218-4 and 231 be
delivered to the United States.
The United States presented at trial the expert
testimony of George Thornbury, a duly qualified and licensed
real estate appraiser.
left unchallenged.

Mr. Thornbury’s expert testimony was

Mr. Thornbury used the comparable sales

method to determine the fair market values of the properties
which were the subjects of these consolidated actions.
Mr. Thornbury testified that Tract No. 218 consisted
of .27 acres.

Approximately .21 acres of that property was

usable and .06 acres was not usable as it was creek bank and
also partially submerged in the creek.

Mr. Thornbury testified

that the property was unimproved, in the floodplain, partially
underwater, had no practical vehicle access, and had been unused
for years except by individuals driving four-wheelers and
recreational vehicles over the property.
5

He determined that the

highest and best use of the property was for recreational use.
Mr. Thornbury testified that the fair market value of that
property was the rounded figure of $3,500.00.
Mr. Thornbury testified that Tract No. 218-2 consisted
of .12 acres, all of which was usable.

Mr. Thornbury testified

that the property was unimproved, in the floodplain, had no
practical vehicle access, and had been unused for years except
by individuals driving four-wheelers and recreational vehicles
over the property.

He determined that the highest and best use

of the property was for recreational use.

Mr. Thornbury

testified that the fair market value of that property was the
rounded figure of $2,100.00.
Mr. Thornbury testified that Tract No. 218-3 consisted
of .11 acres, all of which was not usable because it was creek
bank and also partially submerged in the creek.

Mr. Thornbury

testified that the property was unimproved, in the floodplain,
partially underwater, had no practical vehicle access, and had
been unused for years except by individuals driving fourwheelers and recreational vehicles over the property.

He

determined that the highest and best use of the property was for
recreational use.

Mr. Thornbury testified that the fair market

value of that property was the rounded figure of $250.00.

6

Mr. Thornbury testified that Tract No. 218-4 consisted
of .14 acres, all of which was usable.

Mr. Thornbury testified

that the property was unimproved, in the floodplain, had no
practical vehicle access, and had been unused for years except
by individuals driving four-wheelers and recreational vehicles
over the property.

He determined that the highest and best use

of the property was for recreational use.

Mr. Thornbury

testified that the fair market value of that property was the
rounded figure of $2,400.00.
Mr. Thornbury testified that Tract No. 231 consisted
of .19 acres.

Approximately .11 acres of that property was

usable and .08 acres was not usable as it was creek bank and
also partially submerged in the creek.

Mr. Thornbury testified

that the property was unimproved, in the floodplain, partially
underwater, had no practical vehicle access, and had been unused
for years except by individuals driving four-wheelers and
recreational vehicles over the property.

He determined that the

highest and best use of the property was for recreational use.
Mr. Thornbury testified that the fair market value of that
property was the rounded figure of $2,000.00.
As noted by Mr. Thornbury, to a reasonable degree of
certainty, the fair market values of these properties were
determined in compliance with the Uniform Standards
7

of Professional Appraisal Practice adopted by the
Appraisal Standards Board of the Appraisal Foundation and the
Uniform Appraisal Standards for Federal Land Acquisitions.

II. CONCLUSIONS OF LAW
“The Fifth Amendment provides that ‘private property
[shall not] be taken for public use, without just compensation,’
U.S. Const. amend. V . . . .”

Hutto v. South Carolina

Retirement System, 773 F.3d 536, 551 (4th Cir. 2014).

“Just

compensation” means the fair market value of the property taken
on the date of the taking.

In the case of a permanent taking,

the owner is entitled to the fair market value of his property
at the time of the taking.

Almota Farmers Elevator & Warehouse

Co. v. United States, 409 U.S. 470, 474 (1973).
As the Supreme Court has noted, “Under this standard,
the owner is entitled to receive ‘what a willing buyer would pay
in cash to a willing seller’ at the time of the taking.”

Kirby

Forest Industries, Inc. v. United States, 467 U.S. 1,
9-10 (1984) (quoting United States v. Miller, 317 U.S. 369, 374
(1943)).

The fair market value of the property is determined

based on the condition of the property on the date it was taken,
before there was any expenditure, change or improvement thereon
by the Government.

Olson v. United States, 292 U.S. 246 (1934).
8

The unchallenged expert testimony herein estimated the
fair market value of the subject properties based upon the
prices which have been paid in the market for similar properties
in the vicinity of the subject property.

This is an acceptable

means for establishing a parcel’s fair market value.

United

States v. 4.85 Acres of Land, 546 F.3d 613, 617-18 (9th Cir.
2008); United States v. 1,129.75 Acres of Land, 473 F.2d 996,
998 (8th Cir. 1973); United States v. 320.0 Acres of Land, 605
F.2d 762, 798 (5th Cir.1979); United States v. Whitehurst, 337
F.2d 765, 775 (4th Cir. 1964).
Having considered the entirety of the record, and the
unchallenged opinions of the lone expert in these consolidated
cases, the fair market values of the fee simple interests taken
are as follows:
Tract
Tract
Tract
Tract

No.
No.
No.
No.

218
218-2
218-3
218-4

$3,500.00
$2,100.00
$ 250.00
$2,400.00

.64 Case Total $8,250.00
Tract No. 231

$2,000.00

.19 Case Total $2,000.00
Total Amount of Just Compensation
for Takings in Consolidated Cases

9

$10,250

It is, accordingly, ORDERED that, inasmuch as the
amounts of estimated just compensation previously deposited are
equal to the adjudicated fair market value of the subject
properties, the United States has no further financial
obligation to the interested parties.
The court notes the June 15, 2015, “Brief Regarding
Ownership of the Condemned Properties,” filed by the United
States, with accompanying declarations by Kimberly P. Perry and
Thomas R. Bradley, attorneys for the United States Army Corps of
Engineers.

On June 15, 2015, the materials were mailed by the

United States to each of the interested parties herein and no
mailing was returned.

In those materials, it is the position of

the United States that ownership of the subject properties is,
and the proceeds above should be distributed, as follows:
Billie Jean Henritze Nance and Betty Jane Henritze
Ayers, each an undivided 1/4 interest; and
The John S. Henritze Testamentary Trust, John Clarke
Wallace, Jr. and Katherine Wallace Wetherington, now
known as Katherine Osborne Wallace, Co-Trustees,
undivided 1/2 interest.
In view of these respective interests, it would appear
that the distribution of the proceeds would be as follows:
Billie Jean Henritze Nance
Betty Jane Henritze Ayers
The John S. Henritze Testamentary Trust
TOTAL

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$2,562.50
$2,562.50
$5,125.00
$10,250.00

It is, accordingly, further ORDERED as follows
respecting the distribution process:
1.

That the United States be, and hereby is, directed to
serve upon the interested parties, by certified mail
return receipt requested, on or before September 8,
2015, a copy of this memorandum opinion and order;

2.

That the interested parties be, and hereby are,
noticed that their failure to object in writing to the
proposed distribution above, on or before September
28, 2015, will result in the entry of a Judgment
directing the Clerk to pay out those sums listed above
to the distributes as set forth on page 10 hereof.2
The Clerk is directed to transmit a copy of this

written opinion and order to counsel of record and any
unrepresented parties.
DATED:

August 25, 2015

John T. Copenhaver, Jr.
United States District Judge

2

The Clerk is directed to terminate the motion found at
docket entry 25 in civil action 2:14-17688.
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