United States of America, Plaintiff-appellant, v. 428.02 Acres of Land, More or Less, Situate in Newton Andsearcy Counties, Arkansas, and Robert G. Patrick,et Ux., et al., and Unknown Owners,tract No. 49-115, Defendants-appellees, 687 F.2d 266 (8th Cir. 1982)

Prior to permitting the introduction of any evidence about this contract, the trial judge held a hearing outside the presence of the jury as to its admissibility. The government argued that because the sale was never consummated, the contract was too speculative an indication of fair market value. In addition, the government argued that the contracting parties' awareness that the land was within the confines of the Buffalo National River may have resulted in a contract price which was inflated because of the property's inclusion within this government project. Any such inflated value is not to be considered in arriving at fair market value under the so-called "scope of the project" rule. The trial judge ruled that the questions raised by the government went to the weight of the evidence rather than to its admissibility and allowed evidence of the contract to be placed before the jury.

Subsequently, the Hodgdens' appraisal witness, Keith Schultz, testified as to the parties to the contract, its terms, and the date that it was entered into. The contract itself was never offered into evidence.³  Schultz testified that the contract price was the best indication of the value of the cave. He arrived at this conclusion after surveying a number of other caves in the area and finding none of them to be comparable to the Hodgdens' cave, which is known as Beauty Cave. The other caves Schultz studied were all much smaller than Beauty Cave and were all developed to permit tourist traffic through them. After discounting developments, Schultz arrived at values ranging from $20,450 to $38,000 for these caves in their wild states. The evidence indicated, however, that Beauty Cave is in a class by itself in both its spectacular size and in the wondrous nature and quality of the formations that it contains. At least ten miles of passageways have been explored by spelunkers who have discovered, among other features, rare gypsum needle and angel hair formations unmatched by any other cave in the United States. It was Schultz's opinion that the highest and best use of the cave was to develop it commercially as a tourist attraction. Apportioning the $250,000 contract price among the two wooded tracts and the cave, Schultz concluded that the cave was worth $194,000.

By contrast, the two government appraisers, Wesley Adams and Tom Reeder, rejected the contract as an indication of the fair market value of the cave. Adams opined that the cave was not capable of commercial development. He cited other caves that he investigated in attempting to determine the value of Beauty Cave, one of which he said sold for $58,000 excluding land and improvements. This cave was much smaller but more accessible to the public than Beauty Cave. Adams did not assign one value to the cave, but apportioned it among the three tracts of the Hodgdens' land under which it extended; the combined price amounted to an appraisal of $41,000. T. 243-46. Reeder concurred that commercial development of the cave was not feasible largely because of its location seven miles from the nearest paved highway. He applied the market approach in which sales of comparable properties are studied in determining the value of the property to be appraised and concluded that the fair market value of Beauty Cave was $35,475.

The government contends that the admission of evidence of the contract in support of Schultz's valuation testimony violated the scope of the project rule. The rule states that "if the condemned land was probably within the scope of the governmental project for which it is being condemned at the time the Government became committed to that project, then the owner is not entitled to any increment in value occasioned by the Government's undertaking the project." United States v. 320.0 Acres, etc., 605 F.2d 762, 781-82 (5th Cir. 1979) (Everglades). The rule represents a refinement by the Supreme Court of the principle that fair market value shall be the measure of the "just compensation" that the Constitution mandates when private property is taken for a public use. See United States v. Reynolds, 397 U.S. 14, 15-16, 90 S. Ct. 803, 804-05, 25 L. Ed. 2d 12 (1970). It was apparent to the Court that market value may be affected either adversely or favorably "by the imminence of the very public project that makes the condemnation necessary." Id. (footnote omitted). Hence, "to permit compensation to be either reduced or increased because of an alteration in market value attributable to the project itself would not lead to the 'just compensation' that the Constitution requires." Id. (footnote omitted). On the other hand, the Court has recognized that the market value of lands not within the scope of the original project but in close proximity to it may also be affected by virtue of the project. If such lands should later be taken by the government, "it must pay their market value as enhanced by this factor of proximity." United States v. Miller, 317 U.S. 369, 376, 63 S. Ct. 276, 281, 87 L. Ed. 336 (1943).

Undisputedly Beauty Cave was within the scope of the project as originally delineated in 1972 by the Act. Accordingly any increase or decrease in market value caused by the project must be discounted in determining fair market value. It is the government's position that because the parties explicitly acknowledged the possibility of condemnation in the contract, the contract price somehow must have been affected by this possibility. It is also suggested that the contract might have been the product of collusion between the parties in order to enhance any future condemnation award. Thus, according to the government, there was no other way to ensure against an impermissible enhancement of the just compensation award than to exclude totally any evidence of the executory sales contract.

The question becomes whether the Supreme Court-mandated substantive exclusion of increments of value attributable to the government project requires that an evidentiary exclusion be enforced against evidence of sales (or contracts for sale) of property which may reflect market values impermissibly tainted by the government project. This problem was thoroughly treated by then Chief Judge Brown of the Fifth Circuit in the Everglades case, supra. Therein he concluded:

We have been unable to find any decisions in which an appellate court has squarely addressed the question and concluded that the SOP (scope of the project) rule requires an evidentiary exclusion. In their discussions of the substantive exclusion (no compensation for value attributable to the Government's special demand and its actions as condemnor), the Supreme Court's two major SOP decisions-Miller and Reynolds -contain no hint that an evidentiary exclusion is either necessary, or for that matter, proper.

Id. at 800 (footnote omitted).

In Everglades, the Fifth Circuit reversed a ruling by the trial court which excluded as evidence of fair market value all sales of coastal mangrove properties within the scope of the project (Everglades National Park) after the date when the boundaries of the park were set to include these properties. The court held that even though the market prices may have been impermissibly inflated by the existence of the park, a blanket evidentiary exclusion was an abuse of discretion because the excluded sales were the most comparable sales available in determining fair market value.

Thus, where an evidentiary exclusion would eliminate the "most comparable" sales available, the better course would be to admit the possibly tainted sales with appropriate instructions, permit the parties to present testimony pro and con regarding whether the sales are tainted and how much the taint distorts true market value, and then instruct the fact-finder as to what elements of value must be included or excluded from the compensation award. The scope of the project rule commands only that value attributable to the Government's special demand and its actions as a condemnor be excluded from compensation .... It does not command that evidence be excluded. In many cases, the substantive exclusion can be accomplished as effectively through the use of proper instructions as it can through an evidentiary exclusion. And in some cases it is possible that only by the use of instructions can the substantive exclusion be given effect justly and fairly.

Id. at 802-3 (footnotes omitted) (emphasis in original).

Similarly, this circuit in general manifests a liberal view toward the admissibility of valuation evidence in condemnation cases.

In any condemnation case it is quite likely that some questionable evidence will get into the record and that some items of evidence are admissible for limited purposes only. The problem frequently, if not generally, can be taken care of by cautionary instructions given at the time the evidence comes in or in the course of final instructions given to the jury by the trial court, or by initial cautionary instructions followed by similar instructions in the court's final charge to the jury.

United States v. 91.90 Acres of Land, etc., 586 F.2d 79, 89 (8th Cir. 1978), cert. denied, 441 U.S. 944, 99 S. Ct. 2162, 60 L. Ed. 2d 1045 (1979). In particular, it has been held (as in the Everglades case) an abuse of discretion for a trial judge to adopt a per se exclusionary rule and thereby to exclude evidence of all comparable sales made subsequent to the date of the taking. United States v. 1,129.75 Acres of Land, 473 F.2d 996, 998-99 (8th Cir. 1973); accord United States v. 691.81 Acres of Land, 443 F.2d 461, 462-63 (6th Cir. 1971); United States v. 63.04 Acres of Land, 245 F.2d 140, 144 (2d Cir. 1957). We emphasize that we are not holding that all such evidence must be admitted; the question of admissibility still resides in the sound discretion of the trial judge. We merely hold that when the trial judge effectively precludes all evidence of sales, or contracts for sale, of property that is comparable to the property being condemned, the ultimate goal of just compensation may be defeated. Accordingly, "(s)ound and just trial practice is to admit as many of the 'most comparable' sales available as is necessary to fairly permit each side to present its argument of fair market value for the jury's consideration." Everglades, supra, 605 F.2d at 798 (footnote omitted).

Nor are we convinced that any different rule should be applied regarding evidence of sales or contracts for sale of the very property that is the subject of the condemnation proceeding. In the area of comparable sales, comparability is said to be a function of the similarity of the characteristics of the properties, their geographic proximity, and the recency of the sale, or contract for sale. Id. at 798. It then follows that a recent sale of the very property to be condemned, provided that the sale is an unforced, arm's-length transaction, is extremely probative evidence of fair market value. Cf. Hickey v. United States, 208 F.2d 269, 273 (3d Cir.), cert. denied, 347 U.S. 919, 74 S. Ct. 519, 98 L. Ed. 1074 (1954) ("Recent sales of the very property condemned are entitled to considerable weight, but sales of similar property are entitled to weight also; and the relative importance of the two is dependent upon the facts in the particular condemnation proceeding.").⁴ 

As we have noted, the government suggests the possibility of collusion between the contracting parties for the purpose of inflating the value of any future condemnation award. The government points to the fact that the sale was never consummated as an indication that this was not a bona fide contract for sale. The Third Circuit was faced with an identical admissibility question in United States v. Certain Parcels of Land, etc., 144 F.2d 626 (3d Cir. 1944). That court reasoned as follows:

It is true the contract had not been consummated and that, as argued by the government, reception of such evidence makes it possible for a landowner, learning that condemnation of his property is likely, to enter into a collusive agreement of sale so as to manufacture evidence in support of an exorbitant claim. This danger is not to be minimized, particularly in view of the difficulty which might well be entailed in proving such collusion. Yet evidence of a bona fide sale, otherwise relevant, should not be excluded because of the possibility that some landowner might conspire with another to defraud the government by manufacturing collusive evidence. Such objections go to the weight of such evidence rather than to its admissibility, and the trial affords opportunity, both by cross-examination and comment to the jury, to bring such evidence to its proper perspective for the jury's consideration. The penalties of the criminal law also will afford a deterrent to such persons without depriving others of significant evidence of the value of their property in condemnation proceedings.

Id. at 630. Thus, it was ruled that the evidence was admissible. See also Surfside of Brevard, Inc. v. United States, 414 F.2d 915 (5th Cir. 1969). We note that in the instant case, the government was given unrestrained latitude in the presentation of its case, through direct and cross-examination as well as comments to the jury, to attempt to place the contract in perspective.⁵  Ultimately, however, the government raised nothing more than a "mere possibility" that the contract was not bona fide. For coming into court armed with nothing but speculation, the government has only itself to blame. The Hodgdens' attorney scheduled the taking of the depositions of the Oklahoma purchasers, but later cancelled them at the government's insistence. Proper use of pretrial discovery would have gone far in removing this issue from the realm of complete speculation.

In light of the foregoing principles, we hold that it was not an abuse of discretion for the trial judge to admit testimony about the executory sales contract in support of the appraiser Schultz's valuation testimony. The jury in this case was faced with a unique and difficult valuation problem in Beauty Cave. Even the government's appraisers were compelled to admit that none of the other caves in the Ozark region was comparable to Beauty Cave. Accordingly, a liberal view toward the admissibility of any and all evidence that would aid the fact finders in arriving at a fair market value would seem essential. Our review of the record in the case reveals no evidence regarding the effect the Buffalo National River project had on land values, either inflationary or deflationary. Nevertheless, the jury was instructed to disregard any value that could be attributable to the government's special demand for the property.⁶  In addition, the trial judge properly permitted evidence pro and con regarding the usefulness of the sales contract as an indication of fair market value. Under these circumstances, no abuse of discretion is apparent.

The remaining issue raised by the government is that the award was excessive because the record fails to establish that the highest and best use of the cave is commercial development as a tourist attraction. It is a basic principle of eminent domain law that the condemnees are entitled to the value their properties would command on the open market in light of the highest and most profitable use to which they might reasonably be devoted in the near future. Everglades, supra, 605 F.2d at 811. Based on the authority it cites in support of its argument, the government appears to contend that the trial court erred in permitting evidence regarding commercial development on the issue of highest and best use.

It is established that in condemnation cases, the trial court must "screen the proffered potential uses and exclude from jury consideration those which have not been demonstrated to be practicable and reasonably probable uses." United States v. 341.45 Acres of Land, 633 F.2d 108, 111 (8th Cir. 1980), cert. denied, 451 U.S. 938, 101 S. Ct. 2017, 68 L. Ed. 2d 324 (1981), quoting Everglades, supra, 605 F.2d at 815. If the government wished to exclude evidence of commercial development on the issue of highest and best use, then it was constrained to object to such evidence at trial; no objection was made, therefore no error was preserved for review.

Furthermore, even if objection had been made, our review of the record indicates that there was a "reasonable probability" that the cave was both physically adaptable for commercial use and that "there is a need or demand for such use in the reasonably near future." United States v. 341.45 Acres of Land, supra, 633 F.2d at 111. The cave is located in the midst of the Ozarks in northern Arkansas, an immensely popular summer vacation area where there are already a number of caves which are going concerns. Although the government offered evidence that a great deal of money would be required to convert Beauty Cave from its wild state,⁷  there was evidence that the owners of one nearby cave, Blanchard Springs, spent between $12,000,000 and $15,000,000 converting their cave to accommodate tourists. Charles Craig, a spelunker, testified that he had extensively explored both Blanchard Springs and Beauty Cave and the amount of improvements that would have to be made in order for Beauty Cave to accommodate tourists "darn sure wouldn't be near as much as they did to Blanchard." T. 73. Therefore, there was evidence to support the view that Beauty Cave's highest and best use is as a commercially developed tourist attraction. See Hembree v. United States, 347 F.2d 109, 113 (8th Cir. 1965).

Finally, as to any argument that the jury award of $110,000 was just plain excessive, we disagree since the award was within the scope of the evidence; i.e., it was within the range of the experts' ultimate value opinions for the cave. See United States v. 9.20 Acres of Land, More or Less, 638 F.2d 1123, 1126 (8th Cir. 1981).

Accordingly, we affirm the judgment of the district court.