United States District Court, M.D. Georgia, Columbus Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
five Natural Gas Act condemnation actions are ready for trial
on the issue of just compensation. Presently pending before
the Court are the motions in limine and motions to exclude
filed by Plaintiff Sabal Trail Transmission, LLC. Resolution
of these motions requires an understanding of the proper
measure of just compensation, so that is where the Court will
Measure of Just Compensation
parties do not agree on whether federal or state law governs
the measure of just compensation. Defendants assert, without
citing any authority, that Georgia law applies to the issue
of just compensation. Sabal Trail contends that just
compensation is a matter of federal law, but it did not cite
any binding authority on this issue.
Circuit, “the law of the state where the condemned
property is located is to be adopted as the appropriate
federal rule for determining the measure of compensation when
a licensee exercises the power of eminent domain pursuant to
Section 21 of the Federal Power Act.” Ga. Power Co.
v. Sanders, 617 F.2d 1112, 1124 (5th Cir. 1980) (en
banc). Under the rationale of Sanders,
the Court finds that Georgia law should be adopted as the
federal rule to determine the measure of just compensation in
this Natural Gas Act condemnation proceeding. See Sabal
Trail Transmission, LLC v. Real Estate, No.
1:16-CV-063-MW-GRJ, 2017 WL 2783995, at *2-*6 (N.D. Fla. June
27, 2017) (providing a detailed analysis and concluding,
under Sanders, that “state substantive law
governs the compensation measure in eminent-domain
condemnation proceedings” under the Natural Gas Act).
Georgia law, just compensation means “the fair market
value of the property at the time of the taking.”
Dep't of Transp. v. Mendel, 517 S.E.2d
365, 367 (Ga.Ct.App. 1999). If “there is a partial
taking of property by condemnation, just and adequate
compensation is the sum of the market value of the property
that is taken and the consequential damage, if any, to the
property that remains, both measured as of the time of the
taking.” Gwinnett Cty. v. Ascot Inv. Co., 726
S.E.2d 130, 132 (Ga.Ct.App. 2012). “The consequential
damage to the property that remains is the difference between
its fair market value before the taking and its fair market
value after the taking.” Id.
compensation must be based on the value of the rights taken,
without regard to the owner's personal relationship to
the property taken.” Mendel, 517 S.E.2d at
367. In general, the cost to cure damage to property caused
by the taking “may be considered a factor in
establishing the reduced fair market value of the remaining
property after the taking.” Steele v. Dep't of
Transp., 671 S.E.2d 275, 278 (Ga.Ct.App. 2008) (quoting
Dep't of Transp. v. Ogburn Hardware & Supply,
Inc., 614 S.E.2d 108, 110 (Ga.Ct.App. 2005)). Although
cost to cure “may be an important factor used by an
appraiser in determining the value of the remainder [of
property after a partial taking], it is not recoverable as a
separate element of damage.” Id.
The Burden of Proof
parties also do not agree on which side has the burden of
proof. Defendants argue that under Georgia law, Sabal Trail
as the condemnor has the burden to prove just compensation.
Sabal Trail asserts that under federal law, the landowners
have the burden of proof.
federal cases generally state that in condemnation cases, the
landowner has the burden to prove fair market value of the
land taken, including severance damages (damages to the
remaining land in a partial taking). See, e.g.,
U.S. ex rel. Tenn. Valley Auth. v. Powelson, 319
U.S. 266, 273 (1943) (“The burden of establishing the
value of the lands sought to be condemned was on [the
landowner].”); United States v. Smith, 355
F.2d 807, 809 (5th Cir. 1966) (stating that the land owners
have the “burden of proving” fair market value of
the land taken and severance damages). Both Powelson
and Smith were concerned chiefly with whether some
of the landowners' evidence should have been excluded in
determining the fair market value of the property taken, and
both cases were remanded for further proceedings
without that evidence. The implication of these
cases is clear: if the landowner contends that he is entitled
to a larger just compensation award than the Government's
evidence shows, the landowner must present valid evidence to
prove that amount.
courts have concluded that since the condemnor must pay
before taking private property for public use, the condemnor
has the burden of proving fair market value of the property
taken. Glover v. Dep't of Transp., 304 S.E.2d
567, 568 (Ga. Ct. 1983).But that burden is met “as soon
as” the condemnor introduces evidence of value.
Id. And, if “the condemnee contends that the
value or the amount of the damage is greater than is shown by
the condemnor's proof and seeks a verdict for some
greater amount he must introduce evidence that will itself or
together with other evidence in the case support the verdict,
else if a verdict is returned for an amount greater than is
authorized under the condemnor's evidence it will fall
because unsupported.” Id. (quoting Lewis
v. State Highway Dep't, 140 S.E.2d 109, 110
(Ga.Ct.App. 1964)). Nonetheless, the Georgia courts have
stated that it would be error to instruct a jury that the
condemnee has the burden to prove fair market value.
Id.; accord Gen. Lighting Distrib., Inc. v. Cobb
Cty., 538 S.E.2d 807, 809 (Ga.Ct.App. 2000) (“In
the usual condemnation case, where the measure of damages is
the fair market value of the property, the condemnor bears
the burden of proving that value, and the burden of proof
does not shift to the condemnee even if the condemnee
disputes the figures offered by the condemnor.”).
Court finds no actual conflict between the federal rule and
the Georgia rule. Under both federal law and Georgia law, a
landowner who contends that the just compensation award
should be greater than what the condemnor's evidence
shows has the burden to present evidence supporting the
larger just compensation award. Failure to do so renders any
excess jury verdict invalid as unsupported. So, even though
the Georgia courts deny that landowners have a burden of
proof on fair market value, landowners actually do have the
burden to show fair market value in excess of the
condemnor's valuation. The Court therefore plans to
instruct the jury that Defendants have the burden to prove
just compensation in excess of Sabal Trail's valuation
Common Motion in Limine
Trail filed nearly identical motions in limine on five issues
in these five actions, and Defendants filed nearly identical
responses. The Court will address all of the common motions
in limine together.
Amounts Sabal Trail Paid Other Landowners
Trail moved to exclude evidence of how much it paid other
landowners for easements along the pipeline's route. This
motion is granted. “Fair market value is defined as the
price that a seller who desires but is not required to sell
and a buyer who desires but is not required to buy would
agree is a fair price after due consideration of all the
elements reasonably affecting value.” Thornton v.
Dep't of Transp., 620 S.E.2d 621, 624 (Ga.Ct.App.
2005) (quoting Dep't of Transp. v. Old Nat'l
Inn, 345 S.E.2d 853, 856 (Ga.Ct.App. 1986)). Defendants
argue that evidence of the amounts Sabal Trail paid other
landowners before resorting to condemnation proceedings is
the best evidence of the value of the easements. Defendants
did not cite any condemnation cases adopting this view. The
Court is not convinced that sales made under threat of
condemnation proceedings are voluntary or that they
accurately reflect the fair market value of the property.
See, e.g., U.S. ex rel. Tenn. Valley Auth. v.
Reynolds, 115 F.2d 294, 296 (5th Cir. 1940) (“We
think it too clear to require citation of authorities, that
neither the award made to [the landowner's sister] nor
the amounts paid by the government for other tracts acquired
by it for the project, was admissible in evidence in this
proceeding[.]”). Evidence of the amounts Sabal Trail
paid other landowners is excluded.
Amounts Sabal Trail Offered to Defendants
Trail moved to exclude evidence of pre-suit offers to
Defendants. This motion is granted. Before Sabal Trail
initiated these eminent domain actions, it made offers to
purchase the easements from Defendants. Several courts have
concluded that such offers are offers of compromise that must
be excluded under Federal Rule of Evidence 408. Defendants
agree that they should not be permitted to introduce these
offers to prove or disprove the validity or amount of a
disputed claim. They do ask that the evidence be allowed if
it is introduced for another purpose, as permitted under
Federal Rule of Evidence 408(b). If any Defendant wishes to
introduce evidence regarding the pre-suit offers from Sabal
Trail, the Defendant should first raise the issue to the
Court outside the presence of the jury.
Evidence of Alleged Pipeline Dangers
Trail anticipates that Defendants will try to testify that
they are afraid the pipeline may be dangerous, and Sabal
Trail moved to exclude this testimony. This motion is
granted. Some courts do permit lay witnesses to provide
evidence on how fear in the marketplace affects the value of
property. See, e.g., Ryan v. Kan. Power & Light
Co., 815 P.2d 528, 534 (Kan. 1991). But see Dixie
Textile Waste Co. v. Oglethorpe Power Corp., 447 S.E.2d
328, 330 (Ga.Ct.App. 1994) (affirming exclusion of testimony
regarding general, public fear of electric power lines and
their impact on property values because it was speculative).
Even under Defendants' cases, a witness cannot use his
own personal fear as a basis for testifying about fear in the
marketplace. See Ryan, 815 P.2d at 534 (“[N]o
witness . . . may use his or her personal fear as a basis for
testifying about fear in the marketplace.”). The Court
thus excludes Defendants' testimony regarding their
subjective fears about the pipeline.
Cost of the Pipeline Project
Trail moved to exclude evidence regarding the cost of the
pipeline project. This motion is granted because the cost of
the pipeline project is not relevant to the matter that the
jury must decide: the measure of just compensation for the
easements on Defendants' property. Defendants argue that
the cost of the project is important to show that Sabal
Trail's pipeline is not a government-funded project.
Defendants shall not be prohibited from pointing out that
Sabal Trail is a private company, but they shall not be
permitted to introduce the cost of the project.
Other Litigation between Sabal Trail and Defendants
Trail moved to exclude evidence of other litigation between
it and Defendants. This motion is granted. None of the prior
litigation is relevant to the issue that the jury must
decide: just compensation in these condemnation actions.
Evidence of other litigation is excluded.
Motions to Exclude in the ...