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Millennium Pipeline Co., L.L.C. v. Certain Permanent and Temporary Easements in (No Number) Thayer Road

United States District Court, W.D. New York

January 25, 2013

MILLENNIUM PIPELINE COMPANY, L.L.C., Plaintiff,
v.
CERTAIN PERMANENT AND TEMPORARY EASEMENTS IN (NO NUMBER) THAYER ROAD, S.B.L. NO. 63.00-1-24.1, TOWN OF ERIN, COUNTY OF CHEMUNG, NEW YORK, Nathaniel Hendricks, Defendants.

Page 298

Karla M. Corpus, Hiscock & Barclay, LLP, Syracuse, NY, Mark D. Lansing, Hiscock & Barclay, Albany, NY, for Plaintiff.

Nathaniel Hendricks, Brooklyn, NY, pro se.

AMENDED DECISION AND ORDER

DAVID G. LARIMER, District Judge.

This action was commenced by Millennium Pipeline Company, L.L.C. (" Millennium" ), seeking an order pursuant to the Natural Gas Act, 15 U.S.C. § 717, et seq., granting Millennium temporary and permanent easements in certain real property (" Property" ) in Chemung County, New York. The primary purpose of the easements is to allow Millennium to construct a natural gas pipeline on or adjacent to the Property, which is owned by defendant Nathaniel Hendricks.

On April 12, 2011, the Court issued a Decision and Order (Dkt. # 62) granting summary judgment in favor of Millennium, and finding that Millennium was entitled to a permanent easement. 777 F.Supp.2d 475. On May 4, 2011, the Court issued an Order (Dkt. # 65) effectuating that prior Decision and Order, and granting plaintiff a permanent easement across the Property for the purpose of constructing and maintaining a natural gas pipeline.

On July 1, 2011, the Court issued another Decision and Order, denying Hendricks' motion for a stay pending appeal, in which I noted that " [t]he trial on the issue of just compensation remains to be held, and any issues concerning damages will be resolved at that time." 812 F.Supp.2d 273, 275-76. Both sides have agreed that the issue of the amount of just compensation should be decided by the Court rather than by a jury

Page 299

or other factfinder. See 777 F.Supp.2d at 478 n. 1.[1]

Millennium now moves for an order precluding the purported expert testimony proffered by Hendricks, and granting summary judgment in its favor on the issue of just compensation, fixing the amount of just compensation due to Hendricks at $8258. Hendricks opposes Millennium's motion, and seeks a trial on the issue of just compensation.

DISCUSSION

In support of its motion for summary judgment, Millennium has submitted, and timely provided to Hendricks, a copy of a report (" Fisher Rep." ) prepared by its expert, Donald A. Fisher. See Dkt. 87-18 through 87-24. Fisher, a New York State Certified General Real Estate Appraiser, opines that the total just compensation in this case would be $8258. Fisher's detailed, sixty-five-page report and accompanying declaration explain that Fisher bases his conclusions on a physical inspection of the Property, an analysis of comparable sales, and Fisher's analysis of the highest and best use of the Property. See Fisher Rep. (Dkt. # 87-18) ¶¶ 11-14.

As stated, Millennium also seeks to preclude Hendricks from introducing his own purported expert reports and testimony. In a " Disclosure of Experts and Expert Reports" filed on February 23, 2012, Hendricks has identified three " expert witnesses providing an expert report" : Dennis Wieland, who " will testify as to the Property and pipeline ditch surveys and removal of Survey Markers" ; Nathan Romeo, a surveyor who " will testify as to the survey of Hendricks; [sic] Property and Millennium activities thereon" ; and Robert A. Moore, who " will testify as to the value of the timber left on Hendricks' Property." Dkt. # 86 at 2-3. Hendricks has also identified six other individuals as " expert witnesses not providing an expert report," with cursory explanations of the subject matter of their proposed testimony ( e.g., " Removal of Pipeline" ). Dkt. # 86 at 3-4.

" It is well established that the landowner has the burden of proving the just compensation owed for the condemned property." United States v. 33.92356 Acres of Land, 585 F.3d 1, 7 (1st Cir.2009). Accord United States v. 4.0 Acres of Land, 175 F.3d 1133, 1140 (9th Cir.1999) (citing TVA v. Powelson, 319 U.S. 266, 273, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943)); United States v. 25.202 Acres of Land, 860 F.Supp.2d 165, 172 (N.D.N.Y.2010). Typically, that means producing competent expert testimony as to the land's value before and after ...


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