On condemnation proceedings, adaptability to the purposes for
which the land could be used most profitably can be considered only
so far as the public would have considered it had the land been
offered for sale in the absence of the exercise of eminent
The owner is entitled to the value of the property taken -- that
is, what it fairly may be believed a purchaser in fair market
conditions would have given for it and not what a tribunal at a
later date may think a purchaser would have been wise to give.
The owner is not entitled to added value resulting from the
union of his lot with other lots when the union was the result of
the exercise of eminent domain, and would not otherwise have been
The owner is entitled to rise in value before the taking not
caused by the expectation of that event.
In this case, involving condemnation of property in New York,
that, although maps showing the parcels to be taken
had been filed and notice posted on the property, one not a
resident of New York, purchasing before the petition was filed,
could properly remove the case into the federal court as the
proceeding was not commenced until after the petition for
appointment of commissioners had been filed.
206 F. 369, reversed.
Page 239 U. S. 58
The facts, which involve the validity of an award by
commissioners for land taken for the Ashokan Reservoir in New York,
are stated in the opinion.
Page 239 U. S. 60
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a proceeding for the taking of land for the Ashokan
Reservoir, similar to the one before us in McGovern v. New
York, 229 U. S. 363
After commissioners were appointed to ascertain the compensation to
be paid, the case was removed to the circuit court, diverse
citizenship being alleged. There was a motion to remand which was
overruled, and subsequently the commissioners reported that
"the sum of $7,624.45 for land and buildings and the further sum
of $4,324.45 for reservoir availability and adaptability, being a
granted total of the sum of $11,948.90, is the sum ascertained and
determined by us . . . to be paid to the owners of and all persons
interested in said land for the taking of the fee thereof,
designated . . . as Parcel 733."
They also recommended the allowance of five percent on the above
award for legal fees and expenses, and of $1,372.31 to named
witnesses in specified sums. The report was confirmed by the
circuit judge, 190 F. 413, and afterwards by the circuit court of
appeals. 206 F. 369.
Upon an inspection of the record, it appears to us, as the
language of the commissioners on its face suggests, that their
report does not mean that the claimant's land had a
Page 239 U. S. 61
market value of $11,948.90 -- that it would have brought that
sum at a fair sale -- but that they considered the value of the
reservoir as a whole, and allowed what they thought a fair
proportion of the increase, over and above the market value of the
lot, to the owner of the land, subject to the opinion of the court
upon the point of law thus raised. Upon that point, we are of
opinion that they were wrong.
The decisions appear to us to have made the principles plain. No
doubt when this class of questions first arose, it was said in a
general way that adaptability to the purposes for which the land
could be used most profitably was to be considered, and that is
true. But it is to be considered only so far as the public would
have considered it if the land had been offered for sale in the
absence of the city's exercise of the power of eminent domain. The
fact that the most profitable use could be made only in connection
with other land is not conclusive against its being taken into
account if the union of properties necessary is so practicable that
the possibility would affect the market price. But what the owner
is entitled to is the value of the property taken, and that means
what it fairly may be believed that a purchaser in fair market
conditions would have given for it in fact -- not what a tribunal
at a later date may think a purchaser would have been wise to give,
nor a proportion of the advance due to its union with other lots.
The city is not to be made to pay for any part of what it has added
to the land by thus uniting it with other lots, if that union would
not have been practicable or have been attempted except by the
intervention of eminent domain. Any rise in value before the
taking, not caused by the expectation of that event, is to be
allowed, but, we repeat, it must be a rise in what a purchaser
might be expected to give.
It is said that, in this case, there was testimony that the lot
was worth more than the total allowed. But the only
Page 239 U. S. 62
explanation of the separation of items by the commissioners is
that they were not prepared to say that the market value of the lot
was $11,948.90, seeing that the claimant bought it a few days
before for $4,500, but that they thought the additional value
gained by the city's act should be taken into account and shared
between the city and the owner of the land -- a proposition to
which we cannot assent. Minnesota Rate Cases, 230 U.
, 230 U. S. 451
McGovern v. New York, 229 U. S. 363
229 U. S.
The motion to remand was made on the ground that Sage bought
after the condemnation proceedings were commenced, and therefore
was not entitled to remove the suit to the circuit court. The maps
showing the parcels of real estate to be taken had been filed and
notices had been posted on the property before the conveyance to
Sage, but the petition for the appointment of commissioners was not
filed until after it had been made. We see no reason to differ from
the opinion of the judges below that the proceeding was not
commenced at the date when Sage took.