It seems to the court that the Government's contention that its witnesses were qualified an expert in the field and that the plaintiffs' witnesses were unqualified to place values upon the coal and surface land is without merit. The court has in mind that the members of the Commission saw and heard the witnesses. In a coal case particularly, it doesn't seem to this court that the Government's contention that the plaintiffs' witnesses were unqualified because lacking in professional training and lacking in professional degrees has weight. Plaintiffs' witnesses were men of long experience in the business. To say that they could not value the coal before and after because of being unable to make a thorough inspection of the mine itself is quibbling. The Pittsburgh seam of coal in Westmoreland County, Pennsylvania, according to the witnesses testifying in this case, is a well-known and well-defined strata of coal. Its quality is known, its thickness is known and was testified to in this case. The location and accessibility of the mine to the markets of the coal companies was brought out by plaintiffs' witnesses. The equipment in the mine was considered. Plaintiffs' witness, Glasgow, was a man of vast experience and knowledge. He had been Secretary of Mines of the Commonwealth of Pennsylvania for eight years. He had operated in mines in the area for many years for a large coal company. He knew coal values in the area. He had been in the coal mining business himself.
Plaintiffs' other expert witness, Tomajko, was likewise, in the opinion of this court from an examination of the evidence, a qualified witness. The weight of his testimony was for the Commission to evaluate in the first instance, as was that of Mr. Glasgow. It must be remembered also that the Commission heard the owners themselves as to the value of the coal in the Pittsburgh seam. The owners' testimony necessarily had to be given due weight and consideration by the members of the Commission.
The second of the Government's contentions, as previously mentioned, is that plaintiffs' witnesses used an erroneous measure to evaluate the coal in place. A number of decisions are cited by counsel for the Government with respect to this proposition. The point is made that as the condemnation related to mineral deposits, that is, the coal in place, plaintiffs' witnesses simply estimated the tons of coal which could be recovered and multiplied the number of tons by a certain royalty figure per ton in reaching their conclusions as to the value before the taking. The Government cites many of the authorities, all to the effect that in applying the valuation process to mineral deposits in place it has been held improper to determine the value thereof by using the product of the estimated amount of the deposit and the fixed price per unit. The Government cites Vol. 4, Nichols on Eminent Domain, Sec. 13.22, Kossler v. Pittsburgh, C., C. & St. L.R. Co., 208 Pa. 50, 57 A. 66, as well as Georgia Kaolin Co. v. United States, 5 Cir., 214 F.2d 284, United States v. 620.00 Acres of Land, etc., D.C., 101 F.Supp. 686, United States v. Land in Dry Bed of Rosamond Lake, Cal., D.C., 143 F.Supp. 314, and other cases. However, this court cannot conclude from the evidence in this record that the witnesses for the plaintiffs relied entirely upon the royalty method in fixing valuation. Certainly on cross-examination of these witnesses the royalty method of valuing the coal in place was discussed. It is noticed in this respect that what was said in the Georgia Kaolin Co. cases (214 F.2d 286):
'In eminent domain proceedings, the existence of valuable mineral deposits in the condemned land constitutes an element which may be taken into consideration if and in so far as it influences the market value of the land. The reason for this rule is said to be that the measure of compensation in such cases is the market value of the land to be condemned, taken as a whole and with due consideration of all the components that tend to make its market value. This rule has been applied to limestone deposits, gold ore, fire clay, coal, stone, and sand and gravel, 156 A.L.R. 1416-1417; but there can be no recovery for both the value of the land and its mineral deposits as two separate items. Atlanta Terra Cotta Co. v. Georgia Ry. & Electric Co., 132 Ga. 537, 64 S.E. 563; United States v. 620.00 Acres of Land, etc., D.C., 101 F.Supp. 686; Orgel on Valuation, under Eminent Domain, page 544, rejecting the method of estimating the amount of stone in situ and multiplying this amount by a fixed price per unit; also citing Searle v. Lackawanna & Bloomsburg Railroad Company, 33 Pa. 57. * * *' (Emphasis supplied.)
refers to mineral deposits in place in which the title to the mineral is in the same person as the fee title. The court goes on to say: 'In rejecting the method of multiplying the estimated amount of clay by a fixed price per unit, the conclusion is largely based on its speculativeness.' It is to be noticed, however, in the instant cases the only thing taken was the right to submerge periodically the mineral deposit, that is, the coal. It is undisputed that thirty acres of the Pittsburgh seam of coal remained in the mine in question. Further, one of the Government's two expert witnesses, Mr. Eisaman, testified as to the value of the coal per acre, but he conceded that in all his long experience in the business he had not only never purchased any Pittsburgh seam coal, but that all his dealings in coal had been based upon a certain price per ton rather than per acre.
Under all of the circumstances in these cases it seems to this court that it was proper for the royalty method of valuation to be considered by the Commission along with all of the other evidence. The exclusion of all such evidence in the present cases would be unrealistic. The quantity of coal was known, its quality and marketability were the subject of testimony. Certainly the Commission was entitled to give some weight to the royalty evidence in reaching the amount of just compensation. This court holds that under the facts before the Commission, the royalty evidence was admissible along with the other evidence in determining the damage suffered by plaintiffs.
It is understood that the Government's objections are applicable to the farm property, Tract No. J-846, also. Again it appears to the court that the Commission had ample evidence before it on which to base the award made to the plaintiffs, and therefore this award will not be disturbed.
The court has heretofore referred to Rule 53, which is applicable to these cases and which requires the court to accept the Commission's findings of fact unless clearly erroneous. From my examination of the evidence, I do not find the findings of fact clearly erroneous and therefore the conclusion of this court is that the findings of the Commission were permitted by the evidence which it had before it. The court has in mind that the commissioners had the opportunity to observe the witnesses while testifying, to appraise their credibility and to determine the weight to be given their testimony. The report of the Commission will in all respects be adopted.
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