Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before MARIS, JONES, and DOBIE, Circuit Judges.
On August 10, 1939, the United States instituted condemnation proceedings to acquire certain lands of Samuel W. Miller, Surviving Executor and Trustee of the Estate of Wilbur P. Graff, Deceased, plaintiff, in Westmoreland County, Pennsylvania, for the purpose of constructing the Loyalhanna Flood Control Creek Dam and Reservoir. Plaintiff owned a tract of 3,576.72 acres of coal land in Westmoreland County, of which the United States in its condemnation petition sought to acquire the fee simple title to 98 acres, coal and mining rights in an additional 22.07 acres, and a temporary easement in 5.64 acres.
Although the plaintiff had acquired this land in 1913, no mines had been opened on the property in 1939, when the United States went into possession. Plaintiff, however, contends that he is entitled to large severance damages, on the ground that the 125 acres carved out and taken by the government deprived him of the only feasible location to equip, develop and operate his tract of 3,500 acres as a drift coal mine.
The United States refused to accept this theory and the parties were thereafter unable to agree on a figure which would constitute adequate payment for the land. Accordingly, a Board of Viewers was appointed by the United States District Court and in 1940, this Board returned an award for the plaintiff in the sum of $12,500.
Plaintiff was not satisfied with this award and his request for a trial de novo before a jury was granted. In 1941 the jury returned a verdict for the plaintiff in the amount of $28,420.83. The District Court thereupon ordered a new trial unless the plaintiff would agree to a reduction of the verdict from $28,420.83 to $18,000. Plaintiff would not accept the lower figure, whereupon a second trial was then had before a jury in 1942. This resulted in a $12,000 verdict which plaintiff deemed insufficient.
The District Court, nonetheless, refused to grant plaintiff's motion for a new trial, and plaintiff has duly taken an appeal to this Court. We are of the opinion that the decision of the court below was correct and we now proceed to discuss the five questions presented by the plaintiff for our consideration.
1. Was the verdict of the jury in the second trial against the weight of the evidence?
Inasmuch as there were no actual sales made of similar properties in the vicinity of the tract in the instant case, it was necessary to call in experienced coal operators and mining engineers with expert knowledge of coal and values to examine the tract taken and testify as to its value, before and after the taking by the United States. There was a sharp issue of fact, however, on the question of "severance damages", that is, whether or not the condemnation deprived the plaintiff of the most desirable entry into the coal underlying the remaining lands of plaintiff adjacent to the dam site.
Plaintiff, on the one hand, strongly contended that the only feasible method of mining the coal was by drift entry, and that the only available place therefor was on the land taken for the dam site. The United States, on the other hand, urged that the balance of the coal field retained by the plaintiff was not at all affected by the condemnation since a drift entry could be made at a point below the dam site and near the center of the coal field.
Moreover, the United States suggested the possibility of a shaft entry into the coal through which mining could be done to better advantage than by a drift opening. Although we mention this latter point, we do not mean to infer that the plaintiff could thereby be forced to work his mine in a manner other than that which suited his convenience and preference. If the plaintiff had planned to operate a drift mine and was precluded from so doing by virtue of the condemnation, this would certainly be a factor worthy of consideration in the computation of compensatory damages.
To uphold their respective contentions, both parties produced expert witnesses, all of whose testimony we have considered. We have also independently examined the maps and other relevant data which aided our understanding of the problem. Pursuant to this careful analysis of the entire record, we conclude that there was substantial evidence to justify the position taken by the jury that the only damage suffered by the plaintiff was the fair market value of the land and coal actually taken; and that the plaintiff was not entitled to recover severance damages, since the condemnation of the 125 acres did not interfere with the successful mining of the residue of plaintiff's property.
The jury had viewed the land and had heard all the expert testimony, so that it could weigh the various opinions in the light of its recollection of the actual physical characteristics of the tract. The jury then resolved the two conflicting factual contentions in favor of the United States. Accordingly, the doctrine of United States v. ...