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UNITED STATES v. 287.89 ACRES

January 20, 1965

UNITED STATES of America, Plaintiff,
v.
287.89 ACRES OF LAND, MORE OR LESS, Situate IN CLEARFIELD COUNTY, COMMONWEALTH OF PENNSYLVANIA, and Howes Leather Company, Inc., et al., Defendants



The opinion of the court was delivered by: MARSH

On May 29, 1962, plaintiff filed its complaint to condemn, inter alia, the following tracts of land in which the title to the underlying clay was owned in fee simple by Harbison-Walker Refractories Company (Harbison), a defendant in this non-jury trial:

'(1) The fee simple title to Tract 503 containing 11.99 acres in Greenwood Township, Clearfield County, Pennsylvania; subject to existing easements for public roads and highways, public utilities, railroads and pipelines.

 '(2) The fee simple title to Tract 504 containing 3.42 acres in the aforesaid township, county and state; subject to existing easements for public roads and highways, public utilities, railroads, and pipelines, reserving, however, to the owner or the owners of any interest therein, including third-party lessees, their heirs, executors, administrators and assigns, all clay and coal in and under said lands with full rights of ingress and egress for exploration, development, production and removal of said clay and coal which may be produced from said land: provided that the said clay and coal so reserved are subordinated to the prior right of the United States to flood and submerge the land as may be necessary in the construction, operation and maintenance of the project, and provided that any exploration or development of such rights shall be subject to Federal and State laws with respect to pollution of waters of the reservoir; provided further that the District Engineer, U.S. Army Engineer District, Baltimore, or his duly authorized representatives shall approve in furtherance of the exploration and/or development of such reserved interests, the type of and location(s) of any structure(s) and/or appurtenances thereto now existing or to be erected or constructed in connection with such exploration and/or development; said structures and/or appurtenances thereto shall not create floatable debris.'

 On the same day, the Declaration of Taking *fn1" was filed, and judgment of condemnation was entered requiring the owners to surrender possession immediately.

 These tracts were required in connection with the construction and establishment of the Curwensville Reservoir Project in the West Branch of the Susquehanna River Basin.

 The condemned Tracts 503 and 504 are portions of a larger tract containing 52.53 acres. *fn2" The clay contained in the larger tract was conveyed in fee, along with other properties, to Harbison by deed (Ex. 1) *fn3" of North American Refractories Company in 1930. The consideration for all the properties described in the deed was over $ 500,000.00 (T., pp. 51-52). The portion of the price allocated to the clay in the 52.53-acre tract *fn4" is not known (T., pp. 51-52).

 In addition to all the clay contained in the 52.53-acre tract, the following mining rights were conveyed to Harbison:

 'The right of ingress, egress and regress to explore for, dig, remove and carry away the same, with the right on the part of the Grantee to build necessary roads, railroads, airshafts, slopes or other structures as may be necessary in the course of proper mining to dig, remove and transport the said clay of said described property; with release on the part of the first party for damages to the surface or to the water thereupon or thereunder that may be caused by the mining and removal of said coal and other minerals in a proper manner.

 'Together, also, with the right on the part of the Grantee to haul underneath the demised property, clay from other lands, free of charge, but this right shall not extend to any haulage or wheelage over the surface as above described except that from the drift mouth or drift mouths as they are constructed upon the demised premises, the Grantee shall have the right of way over the surface directly to the railway for the purpose of transporting said clay to the railway, this shall be confined to right of way from drifts as they may be necessary and opened for the removal of the minerals from the Watts land.'

 The evidence showed that the fee simple title to the 52.53-acre tract, except the clay and subject to the aforesaid mining rights, was vested in Vern I. Shuss. *fn4"

 Preston C. Mitchell, vice-president of Harbison in charge of mining, testified that the market value of the 52.53-acre tract on the date of condemnation and unaffected by it was $ 26,850.00; that the fair market value of said acreage after condemnation and as affected by it was the sum of $ 1,380.00; the difference of.$ 25,470.00 being the total damage for the taking. *fn5"

 William Yost, a registered mining engineer, called by the Government, was of the opinion that it was economically infeasible now or in the foreseeable future to remove the clay underlying the condemned tracts of land. In 1958 and 1959, prior to the condemnation, this witness had been employed by the Corps of Engineers to make a study and report 'of the valuation or the effect of taking of the minerals of the basin of the West Branch of the Susquehanna River by the Curwensville Reservoir and its effect on the economy of the area.' (T., p. 113). The study and report were not introduced into evidence.

 It was stipulated between the parties that the value of the condemned land in Tracts 503 and 504, excluding the clay, was $ 1,000.00 (T., pp. 156-158). Subtracting this amount from the aforesaid opinions of total damages for the condemned land and clay would leave as just compensation for the condemned clay alone $ 24,470.00 in Mr. Mitchell's opinion, and $ 718.00 in Mr. Bromfield's opinion.

 Mr. Bromfield was also of the opinion that there was no severance damage (T., p. 143). Harbison disclaimed any ...


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