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December 20, 1963

84.4 ACRES OF LAND, MORE OF LESS, Situate IN WARREN COUNTY, STATE OF PENNSYLVANIA, and Lester M. Sheldon et ux. et al.

The opinion of the court was delivered by: MARSH

This is a condemnation proceeding in which, by Complaint and Declaration of Taking filed September 19, 1961, the United States of America acquired 84.4 acres of land designated as Tract 1027 and consisting of the Kinzua Valley Golf Course and related acreage in Warren County, Pennsylvania. A jury trial was held to determine just compensation, and the jury returned a verdict of $ 97,000 in favor of the landowners.

The landowners have moved for a new trial, alleging error by the court in (a) striking from the reproduction cost estimate of their golf course expert witness, William F. Gordon, a sum of $ 84,800 allocated to clearing a hypothetical wooded tract of trees, stumps, stones, roots and brush preliminary to reproduction of the golf course on such a site; (b) refusing to grant the landowners' 'motion for declaratory judgment' relative to the admissibility of the $ 84,800 clearance figure as a proper element in the computation of reproduction cost; (c) charging the jury to disregard a socalled reproduction cost estimate of $ 83,317 given by Edmund Ault, the Government's golf course expert witness; (d) permitting testimony on alleged comparable sales of three golf courses deemed by the landowners to be noncomparable as a matter of law; and (e) failing to adequately instruct the jury in the three principal dollars and cents guides (income, reproduction cost and comparable sales) generally employed by real estate experts in formulating fair market value estimates. For reasons hereinafter set forth, the 'Motion for New Trial' will be denied.

 On September 19, 1961, the golf course proper, a public course situated in the foothills of the Allegheny Mountains, consisted of approximately 65 cleared acres, on which were constructed nine holes and a practice green, a frame club house with integral snack counter, a frame pro shop, a tool shed, and a parking area. The highest and best use of Tract 1027 at that time, it is agreed, was as a golf course.

 I. Reproduction Cost

 (a) Exclusion of $ 84,800.

 At the trial we accepted the reproduction cost method of ascertaining fair market value urged upon us by the owners. An explanation of this method as contained in the Real Estate Encyclopedia, ch. 33, p. 868, was read to the jury by one of the owners' real estate experts, Richard A. Wolfe (T., pp. 328-329). *fn1" Their counsel quoted this explanation in part on page 9 of their brief and argue that the reproduction method was the only fair method to be applied to the present case (brief, p. 10). On page 13 of their brief they state:

 'The value for the land was a separate factor to be added on to the reproduction costs as the court finally realized and so charged the jury at page 571 when it stated:

 "Ladies and gentlemen: In the use of the reproduction cost method, you should consider not only replacement costs of the golf course as such, but also the value of the land as substantially cleared of 65 acres, and the remainder in timber, and the depreciated value of the buildings erected on the land."(Emphasis supplied.)

 This instruction, requested by the owners at the conclusion of the charge, was more favorable to them than they were entitled to under the evidence. Although the owners were permitted to use the reproduction method thus advanced, they offered no proof of the estimated cost of the buildings, less depreciation, and the value of the 'special purpose' land which under that method is to be added. Apparently they feared, as their counsel stated, 'that would have violated the unit rule' (T., pp. 567-568). *fn2" Absent reproduction cost of the buildings, less depreciation, plus the value of the land, the requested instruction was confusing and unnecessary.

 In arriving at just compensation or the market value, the golf course, the buildings, and the land should be evaluated as a whole as of September 19, 1961, the date of taking. It is too well settled for argument that the inquiry as to market value of property taken by condemnation is directed to the condition in which that property existed on the date of taking. United States v. Miller, 317 U.S. 369, 374, 63 S. Ct. 276, 87 L. Ed. 336; Danforth v. United States 308 U.S. 271, 283, 60 S. Ct. 231, 84 L. Ed. 240; Olson v. United States, 292 U.S. 246, 255, 54 S. Ct. 704, 78 L. Ed. 1236; United States v. Chandler-Dunbar Co., 229 U.S. 53, 76, 33 S. Ct. 667, 57 L. Ed. 1063.

 It is our opinion in this unique case that if the cost of reproduction of this golf course is admissible at all, such reproduction must be upon land in the same cleared condition as it existed on September 19, 1961. For years preceding that date this land had existed as a golf course free of undesirable growth and stones.

 The cost of carving a golf course out of a wooded tract in an identical setting, with a similar view, surrounded by mountains and wooded property, in our opinion, is the type of evidence which was held to be inadmissible in Anderson-Tully Co. v. United States, 189 F.2d 192, 195 (5th Cir. 1951); 5 Nichols, Eminent Domain, § ...

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