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United States v. Beard's Erie Basin Inc.

decided: November 11, 1946.

UNITED STATES
v.
BEARD'S ERIE BASIN, INC.



Author: Hand

Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

Beard's Erie Basin, Inc., the owner of property taken by the United States in condemnation, appeals from the award on the ground that it failed to allow any damages caused by injury to its remaining property by reason of the severance of the part taken. The Commissioners of Appraisal in ascertaining the compensation to be awarded reported as follows:

"TO BEARD'S ERIE BASIN, INC., Reputed Owner for the premises taken - 22,384 acres

Land and Improvements $800,657.60

Land including upland andland under water $762,157.60

Buildings and ImprovementsPiers No. 4

and 5, bridge, and miscellaneous

buildings,sheds and structures 38,500.00

Total Land and Improvements $800,657.60

"The Commissioners find that no proper or sufficient proof has been adduced upon the hearing held by them to establish the existence or extent of any alleged severance damages, or to warrant any allowance upon a claim therefor. The evidence clearly shows that the income of the remaining portion of the premises was substantially greater after the taking by the Government in this proceeding than it had been for many years prior thereto. The proof fails to establish that the income from the remainder not taken, during the period prior to the taking, was dependent upon the ownership of the Beard's Erie Basin of the part taken, or that the income which may be anticipated in the future from such remainder will be impaired by reason of the taking. It does not appear therefore, that the taking adversely affected the property not so taken.The commissioners are empowered to find whether or not there are any severance damages only as of the date of the taking, and the past history, indicative of losses, contrasts sharply with the profits of the claimant during the subsequent period. The Commissioners may not speculate or go beyond the record as to the possible causes for the considerable improvement following the taking.

"The Commissioners have accordingly disallowed the claim for severance damages. The amount hereinbefore set forth, to wit, $800,657.60 is fixed and determined by the Commissioners to represent the just compensation which should be paid to Beard's Erie, Inc., for the taking of the parcel hereby appraised."

The District Court confirmed the report of the Commissioners in respect to severance damage in the following language:

"The defendant contends that they were entitled to some $435,173 as consequential or severance damages as testified to by their expert Partridge. The Commissioners' report makes no allowance for consequential damage. They found: First, no proof was adduced to establish the existence or extent of the alleged severance damage; second, that the income from the remaining portion of land in the possession of Beard's Erie Basin was greater after the taking than it had been for many years prior to the taking; third, that the proof failed to show that the income from the remainder prior to the taking was dependent upon conjunctive ownership with the part taken, or that the income which might be anticipated in the future from the remaining property would be impaired by the taking. There is no dispute that the income from the remaining portion was ...


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