Biggs, Chief Judge, and Forman and Smith, Circuit Judges.
This is a condemnation suit in which the appellee (United States) has exercised the power of eminent domain in taking the appellants' (Sheldons') private property for the Allegheny River Reservoir Project, and for the construction of the Kinzua Dam.
The Sheldons, at the time of the taking, were the owners of a tract of land comprising approximately 84.4 acres located in the scenic Allegheny Mountains. When the Sheldons acquired the property they found it heavily wooded, but about 65 acres of the tract were subsequently cleared of timber and rocks and a nine hole public golf course built upon it. The premises were further improved by the addition of a pro shop, club house, driveways, parking lot and irrigation system. The other approximately 20 acres remained timberland.
Condemnation of this tract was instituted by the United States, a declaration of taking was filed, and estimated just compensation of $92,300 was deposited in court. At the trial, Lester M. Sheldon, who was the principal manager of the property, valued the 84.4 acres and the structures thereon at $220,600. The Sheldons also presented four expert witnesses who, through use of the reproduction method of valuation,*fn1 offered opinions as to the worth of the tract. Three of these four were real estate experts who appraised the property respectively at $200,000, $202,000 and $205,000. They testified that they used the reproduction method of valuation because they did not find any sales of golf courses which they believed to be comparable sales.
The first three experts testified that their analyses were assisted substantially by the estimate made by the Sheldons' witness, William F. Gordon, a golf course architect. He testified that using the reproduction method of valuation it would cost $165,396 to reproduce the golf course alone, not considering buying land or constructing buildings. Mr. Gordon stood firm in stating, under cross-examination, that it was physically impossible to select a site in the immediate area of the Sheldons' tract, or even within a limit of 100 miles, comparable to the one taken. Mr. Gordon's testimony indicated that he felt that identical elevation was a necessary element in finding a comparable property and to reproduce the 84.4 acre tract within 100 miles at its present elevation, timberland would again have to be cleared, no suitable land being available. Thus, though $80,596 of his $165,396 figure represented a sum necessary, in his view, to reproduce the course, itself, the remaining $84,800 represented the cost of clearing the trees, rocks, stones, stumps and roots from approximately 65 acres of a hypothetical 84.4 acre tract as a prerequisite to the construction of the course. Mr. Gordon considered this figure a necessary and usual cost of building a golf course. The District Judge, however, ordered the $84,800 figure eliminated from Mr. Gordon's estimate on the ground that the jury was to consider the cost of reproducing the golf course on the land as it was at the time of the taking.
The United States produced three expert witnesses. Mr. Ault, a golf course architect, testified as to the reproduction cost of the course, itself, leaving the land purchase, land clearance, and other construction aside. His figure for reproducing the exact nine hole facility was $57,400. He also testified that to produce a nine hole golf course to meet the minimum standards set by the Green Association would cost $83,317.50. The District Judge allowed this latter figure to go to the jury but only to indicate the potential value of the land to a ready, willing and able purchaser, who might seek improvement of the existing facility.
Mr. Samuelson, a real estate expert for the United States, valued the entire property at $87,000. He based his estimate in part on Mr. Ault's golf course reproduction figure and on the sale of three golf courses which he considered to be comparable properties. Mr. Samuelson described the three courses in detail pointing out their similarities and dissimilarities. The Sheldons objected to the use of these properties as evidence of the fair market value of their condemned 84.4 acres on the ground that the properties described by Mr. Samuelson were not comparable and should not be considered by the jury as a guide to the fair market value of their condemned land. The District Judge overruled these objections and admitted this evidence for the jury's consideration.
Mr. Kane, a third expert witness for the United States, valued the condemned property at $97,000. He testified that he considered a number of factors in reaching his conclusion, among other things, sales of other properties including golf courses, and reproduction costs of certain of the structures erected on the land.
The jury returned a verdict of $97,000 on which an order for judgment was entered. The Sheldons filed a motion for a new trial, which was denied.*fn2 This appeal followed.
The Sheldons challenged the propriety of the use of comparable sales by the United States as evidence of the fair market value of their condemned 84.4 acres. Though conceding that it is within the discretion of the trial court as to whether the comparable properties are sufficiently similar to the condemned property to warrant submission of them to the jury for consideration in arriving at an award, the Sheldons urge that the testimony as to the comparability must be clear and convincing and that this case presented such unique factors that the standard was not met.
Though it appears from the record that none of the other experts used Mr. Samuelson's three comparable sales in evaluating the condemned property, this does not advance the proposition urged upon us by the Sheldons. Furthermore, the mere fact that there were unique elements such as the mountain setting of the condemned course which distinguished it from the alleged comparable sales, did not, as a matter of law, prevent the District Judge from submitting those other golf course sales to the jury. If sufficient similarities existed between the condemned tract and the properties sought to be used as comparables, an appellate court will not overrule a trial court's use of its discretion in allowing the jury to determine for itself whether the described properties were in fact comparable to the condemned tract, and if found comparable, what weight should be given thereto.
In this case each of the three alleged comparable sales took place in an adjoining New York County, no further than 50 miles from the Sheldons' tract. All three courses were open to the public. Two had nine hole golf courses; the other had two nine hole courses. All three had frame buildings upon the land used as club houses, pro shops, or for storage. The acreage involved in the sales was not so grossly disproportionate to the 84.4 acre condemned tract that no comparison would be meaningful. Two of the three comparables had been sold within three years of the trial; the other within five years thereof. Though there were differences in setting and in detail, we cannot say that the District ...