effect of such taking on the property remaining in his hands after the taking, normally called 'severance damage.' United States v. Miller, supra, 317 U.S. at page 376, 63 S. Ct. at page 281.
In the light of these principles, we turn to the further facts bearing upon the loss to the landowners respectively.
Circle Building Supply Co. Inc.
At the time the first taking, Circle was operating a lumber and building supply store and yard on the east side of Route 23, from about the foot of the hill halfway up its side, together with its ownership of a considerable tract of land to its east and north. It took title to Tract 1, consisting of slightly over three acres, for this lumber and building material supply purpose, on January 4, 1951. This tract had a frontage of slightly less than 200 feet on the highway and extended, irregularly, to the rear some 700 feet. On April 15, 1953, it contracted to purchase Tract 2, adjoining Tract 1 on the north. Tract 2 consisted of some 33 1/2 acres, with a highway frontage of 462 feet and a rearage of almost 2,000 feet. This tract was acquired for future development for residential purposes. Circle, being in the lumber business, was doubtless more aware of this probable future development than were the farmers and other landowners thereabouts. After purchasing the first tract, Circle obtained a variance to permit the use of the westerly portion of Tract 1 to a depth of 200 feet for its business. Thereupon it put considerable fill on the very front portion of this first tract and blacktopped it, constructing a substantial store, with certain outbuildings, including lumber sheds. Tract 2, generally purchased for residential development, on the easterly side of the highway, was in part at the level of the road, in part above the highway, and in part below it. A considerable portion of its rearage sloped down to the east, further than the grade of the frontage of Tract 1, so that this rearage had been ditched to carry off flood waters even while used for agricultural purposes, though this flooding was not deep and only of occasional occurrence.
Since much of the front portion of Tract 2 was above the level of the road and relatively free of stone, Circle had arranged with third parties for removal of much of this earth for fill at a fixed price per cubic yard, and had also arranged for the removal of topsoil at another price. In addition, consideration must be given to the need of fill in the low rearage of this same tract, and that for that reason, if no other, the removal of this fill and topsoil might not continue indefinitely under the contract. Such being the case, while it is clear that the existence of this fill and topsoil under its general contract was an element to be considered, with all the other elements, in ascertaining the fair value of this tract, Circle's possible profit from this contract of removal cannot be ascertained as a separate value factor, to be added as a fixed amount, to the valuation of the tract itself. Thus the situation here differs substantially from that of lands whose prime value is their gold, their silver, their lumber, for which there is a ready market, with a fixed contract in effect for its removal. Cf. Georgia Kaolin Co. v. U.S., 5 Cir., 1954, 214 F.2d 284, and National Brick Co. v. U.S., 1942, 76 U.S.App.D.C. 329, 131 F.2d 30. To the extent that the owner's experts considered this fill contract as giving the owner a definite profit, to which sum the fair market value of the land, in its then state, should be superadded, the basis of their valuation would seem incorrect.
Another factor bearing upon the method used by the Government experts on the one hand, and the owner's experts on the other, as to Tract 2, must also be considered. Since this tract was in the main intended for residential purposes, and suburban residences ordinarily require piped water and sewers, the availability of such water facilities to this tract was given great weight by the two sets of experts. The facts of the matter were that Circle, at the time of the first taking, had no legal right to insist that water be made available to this second tract. To get it Circle would have had to make arrangements with Tether, whose land practically surrounded Circle, save along the road, and with Packanack Utilities Company, which supplied the Packanack community with water and sewage facilities. Thus the Government experts valued this Circle land as if it had no piped water and sewage facilities available. Obviously, for residential purposes any such absolute lack made it relatively undesirable, and so they gave this land but relatively small value. On the other hand, since Tether had always been on friendly relations with Circle, and since Circle held a letter from the company supplying the Packanack community with water, indicating its willingness to supply the Circle tract in question with this water as soon as conditions permitted, the experts for Circle valued this tract upon the assumption that piped water was actually available for this potential residential property. They therefore gave it a relatively high value.
In point of fact and law, all these experts were in error. The fact is that the above favorable situation with Tether, the owner of the intervening land, and with the water company, plus the general growth of the immediately surrounding territory as an up-to-date suburban residential community, in all probability meant that the tract in question would soon have had piped water and sewers available to it for up-to-date residential purposes. That this probability, not the exact situation at the time of the taking, is the criterion to be considered by these experts in their valuations, is clear. After all, as shown above, fair market value is the criterion, and this fair market value is based upon the probabilities as they appear to the willing buyer and the willing seller. This principle has recently been applied analogously to probable zoning changes, as indeed it should be to all such situations. United States v. 50.08 Acres of Land, supra.
With these general facts and principles in mind, we turn to the tabular statement of the Circle tracts involved, as affected, first, by the first taking, October 14, 1954, and thereafter by the second taking, August 22, 1955.
Tract 1 Tract 2
(a) A 100E-1 access road (d) A 100 12.59 acres -- fee
(b) A 100-6 access road (e) Severance damages
(c) Severance damages therefrom
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