unclear. It seems to me its argument is fuzzy. For instance as the trial record shows, the construction of this reservoir was long in contemplation and announced in the public press, and was the subject of general discussion among the residents in the area and elsewhere. The highest contemplated elevation as shown on the Engineers' maps for any land taking was 1365 feet prior to the change in Government plans. Tract 754 of the Seibels was between 1328' and 1365' shown on the contour maps, but No. 754-2 was well above the original contemplated taking. The project originally contemplated the construction of a new two-lane highway on the edge of the reservoir, but in front of this No. 754-2, which was built. Giving consideration to the original plan of the Engineers, the parcel of land now called No. 754-2 was left as a mountain projection overlooking what would ultimately be a large lake of water. Not only did the Engineers' plan show the construction of a new highway, but access roads were available to the property.
The landowner's testimony was that the highest and best use of the subject land immediately after the plans for the project were first announced was that of a site for a motel. The Government's testimony was that it was suitable as cottage sites. Even so, the highest and best use from all the witnesses was as a site which was adaptable and could be very well used for a structure or structures having considerable commercial value because of the scenic view of the surrounding mountains and reservoir. The record shows that even from the first the area was supposed to attract large numbers of tourists and travelers seeking recreation such as fishing and boating. The landowner's evidence was also that no other choice lands for private enterprise were left available, and that private enterprise would be looking for such land. The landowner's contention is that it was obvious from circulars published and distributed to the public by the Government that private enterprise would be searching for parcels situate with a view of the dam project such as plaintiff's land possessed. In the meantime the landowner was giving consideration to the amount of enhancement of which the option is but one indication.
In my view this case comes squarely within United States v. Miller, 317 U.S. 369, 376, 63 S. Ct. 276, 281, 87 L. Ed. 336 (1943). The Government surveyed and set apart Tract 754, and in its plans showed that that was the only portion of plaintiff's land to be acquired in the project. Because of the proximity to the public improvement Seibel's remaining land increased in market value immediately. The Government at a later date acquired the other lands. Under Miller - "* * * it must pay their market value as enhanced by this factor of proximity." The Jury was instructed as to the principles of enhancement announced in the Miller case and the Totten case.
As the Government's contention is understood, it is that there can be no enhancement after August 12, 1963, the day of the option, and that the option price determines any enhancement. It seems to me that the answer to this proposition is that any enhancement due to the proximity of this particular land to the project occurred when the original project plans were announced, but the enhancement value in terms of money may not have been generally realized by the public and even the landowners until work on the Reservoir had commenced and attention was drawn to the location in which the instant land was left with relation to the dam. The point is that the enhancement, if any, took place immediately, but the amount thereof was not reduced to a dollar value until the jury verdict.
The Jury has answered the only issue in the case and that is what is the amount of the enhancement. The option and letters sought to be introduced by the Government are at most only some expressions of opinion as to a possible enhancement of value. It should be noticed that neither side offered the option in evidence in the trial as expressing an opinion on value. But it should be mentioned at this point, that the landowner Seibel in his direct testimony gave a figure of $50,000.00 as the value of Tract 754-2 on the date of taking. Mr. McKenna, counsel for the Government, might very well have cross-examined the witness as to the sale price mentioned in the option, but did not choose to do so.
It is my view that the issue as to just compensation in this case was one particularly suited for a Jury to resolve. It heard witnesses and their description of the property and examined the exhibits including photographs and publicity releases put out by the Government and others relating to the future prosperity of the region by reason of this Government project. As is usual in such cases, the Jury brought in a verdict in an amount between the highest figure mentioned by the landowners and the lowest figure mentioned by the Government. It can be assumed that the verdict of the Jury was a bit on the high side, but the verdict brought in was well within the evidence and authorized by it. I do not see any errors of law in the case and believe that the verdict should stand. The motion is denied.
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