The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
In this condemnation case under the Natural Gas Act,
15 U.S.C. § 717, et seq. ("NGA"), Vector Pipeline ("Vector") took
permanent and temporary easements in several tracts of land in
Northern Illinois to build a natural gas pipeline. It acquired
the appropriate Federal Energy Regulatory Commission ("FERC")
certification, and invoked its power of eminent domain. When
attempts to settle issues and differences with the landowners
failed, Vector sued on 14 July 1999. In March 2000, I granted
summary judgment for Vector, and appointed a Commission under
Fed.R.Civ.P. 71A to determine just compensation due to the
defendants. I gave Vector immediate possession in an order of May
15, 2000. Following extensive hearings, the Commissioners
submitted their Report. Vector and several defendants offer
objections to the Report, I reject these objections, adopt the
Report, with the amendment as to the interest rate that the
Commissioners set forth in the response to the objections, and
order that judgment be entered for the defendants in the amounts
Under Rule 71A, I accept the Commissioners' findings of fact
unless clearly erroneous. United States v. 573.88 Acres of
Land, 531 F.2d 847, 850 (7th Cir. 1975); Fed.R.Civ.P. 71A(h)
(Commission's findings have effect of a special master's report
under R. 53(e)(2) (report reviewed for clear error)). The burden
of showing the Report to be clearly erroneous is on the party
attacking the conclusions. United States v. Certain Land
Situated in Ripley, Stoddard and Butler Counties, Mo.,
109 F. Supp. 618, 621 (E.D.Mo. 1952). I review conclusions of law de
novo. Spraying Sys. Co. v. Delavan,
Inc., 975 F.2d 387, 391 (7th Cir. 1992). "Just
compensation" is "that amount of money necessary to put a
landowner in as good a pecuniary position, but no better, as if
his property had not been taken." United States v. L.E. Cooke
Co., Inc., 991 F.2d 336, 341 (6th Cir. 1993). It is measured by
the use that would bring the highest price — the "highest and
best" use. United States v. 69.1 Acres of Land, 942 F.2d 290,
292 (4th Cir. 1991). In the absence of proof to the contrary, the
highest and best use of property is presumed to be its current
use. Id. The burden of proving the value of the land taken is
on the landowner. United States ex rel. TVA v. Powelson,
319 U.S. 266, 274, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943).
I must first discuss which law controls. Oddly enough, the
parties do not disagree on this, but Vector attempts to
manufacture a disagreement that does not exist. Vector says that
federal substantive law controls the measure of damages in all
respects. It accuses the Commissioners of improperly applying
state substantive law, although the Commissioners expressly
endorse an appraisal format approach approved by the Seventh
Circuit using only federal law support, see United States v.
105.40 Acres of Land, 471 F.2d 207, 210 (7th Cir. 1972), and
reject what they call "the Illinois state court approach." The
Seventh Circuit endorsed the proposition "that the measure of
damages is the fair market value of the entire [property] before
and after the taking." Id.
This "before and after" approach was expressly adopted by the
Commissioners, who explained that it requires that "the appraiser
first value the property as a whole and then value the remainder
(including the owner's rights in the easement strip and in any
temporal easements or work space"). The Commissioners cite
United States v. 38.60 Acres of Land, 625 F.2d 196, 199 n. 1
(7th Cir. 1980) (Damages are measured by the "difference between
the market value of the entire tract immediately before the
taking and the market value of the remainder immediately after
the taking."). On this approach, the difference between the two
values is the basis for determining just compensation. See
United States v. Banisadr Bldg. Joint Venture, 65 F.3d 374, 378
(4th Cir. 1995); United States v. 8.41 Acres of Land,
783 F.2d 1256, 1257 (5th Cir. 1986); United States v. 38.60 Acres of Land
in Henry County, Mo., 625 F.2d 196, 199 (8th Cir. 1980). These
are all federal cases. Vector agrees that this is the right
approach, and it fails to substantiate its claim that the
Commissioners covertly used an Illinois state law approach in
practice despite having officially endorsed the federal "before
and after" approach that Vector itself calls for.
In any event, Vector fails to tie its claims about the
controlling law to any specific difference in outcomes in damages
evaluation. Instead, Vector argues that federal law requires the
wholesale rejection of the Commissioners' findings because the
determinations of the Commissioners were clearly erroneous or
based on inadmissable evidence.
The issue, then, is the factual question of whether the taking
destroys the value of the property for its highest and best use.
Lannert's testimony, the McDonnell defendants say, is
uncontradicted. But Vector's appraiser, Joseph Batis, testified
to the contrary, arguing that the access rights would have no
effect on the value of the remainder. The McDonnell defendants
argue that the Commissioners found Batis' testimony
"unpersuasive." What the Commissioners rejected, however, was the
flat claim that there would be no effect on the value of the
property. It does not follow that the Commissioners had to agree
that the effect was as total as Lannert claimed, utterly
precluding residential and commercial development, and consigning
the tract to agrarian uses only. A finder of fact is "free to
believe part of [a witnesses'] testimony and to reject other
parts." Bergmann v. McCaughtry, 65 F.3d 1372, 1378 (7th Cir.
1995). The Commissioners found some diminution in value, thus
disagreeing with Batis, but they were not persuaded by Lannert's
testimony as to how much diminution there was.
Even were Lannert's testimony in fact uncontradicted, the
"trier of fact [may] disbelieve uncontradicted testimony unless
other evidence shows that the testimony must be true." EEOC v.
G-K-G, Inc., 39 F.3d 740, 746 (7th Cir. 1994) (citing cases).
Nothing here shows that the testimony must be true, and it is not
believable that a property could not be developed for residential
or commercial use merely because workers could cross it to reach
an easement. As Batis said, there is a distinction between a
pipeline company that may need to cross from time to time and a
third party that may access the property at any time.*fn3
The McDonnell defendants also argue that because Batis found no
reduction in value to the remainder due to the access rights, the
Commissioners failed to take any reduction in value into account.
This is untrue on the face of the Report, which concludes that
there was a "loss of developable land that had an effect on the
fair market cash value of the remainder." Report at 85. The
McDonnell defendants just disagree with the Commissioners about
what that loss comes to — essentially a difference of a factor of
10, roughly $300,000 as opposed to roughly $2.5 million. I find
no clear error in the Commissioners' findings, and deny the
McDonnell defendants' motion to modify the Commissioners' Report.
I also reject as moot their motion to strike Vector's exhibit 53.
The Jones defendants argue that the Commissioners clearly erred
in valuing their land because they relied on the testimony of
Batis, who appraised only the northern parcel and not the
southern one. The Jones defendants moved unsuccessfully that the
Commissioners strike Batis' testimony with respect to their land.
They now ask me to find that this refusal to strike this
testimony was error, and that the testimony of their own
appraiser, Michael MaRous, was ...