The right to a jury trial afforded by Fed.Rule Civ.Proc. 71A(h)
in a federal eminent domain proceeding on the issue of just
compensation, does not extend to the question whether the condemned
"lands were probably within the scope of the project from the time
the Government was committed to it" (either by the original plans
or during the course of planning or original construction), and
that question is for the trial judge to decide. Pp. 397 U. S.
404 F.2d 303, vacated and remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
The United States brought this suit in the United States
District Court for the Western District of Kentucky to condemn more
than 250 acres of the respondents' land for a federal development
known as the Nolin Reservoir Project located in that State. An
important issue in the case was raised by the respondents' claim
that 78 acres of the land, taken for construction of recreational
facilities adjacent to the reservoir, had not been within the
original scope of the project. [Footnote 1
] A jury
Page 397 U. S. 15
awarded the respondents $20,000 as just compensation for all the
land taken. Upon an appeal by the respondents, the Court of Appeals
for the Sixth Circuit reversed the judgment and ordered a new
trial, finding that the District Judge, in his instructions to the
jury, had erroneously referred to matters disclosed outside the
jury's presence. [Footnote 2
The trial and appellate courts were in agreement, however, in
rejecting the Government's contention that the "scope of the
project" issue was for the trial judge to decide, and should not,
therefore, have been submitted to the jury at all. There being a
conflict between the circuits on this question, [Footnote 3
] we granted certiorari to consider
a recurring problem of importance in federal condemnation
proceedings. 396 U. S.
The Fifth Amendment provides that private property shall not be
taken for public use without just compensation.
Page 397 U. S. 16
And "just compensation" means the full monetary equivalent of
the property taken. [Footnote
] The owner is to be put in the same position monetarily as he
would have occupied if his property had not been taken. [Footnote 5
] In enforcing the
constitutional mandate, the Court at an early date adopted the
concept of market value: the owner is entitled to the fair market
value of the property [Footnote
] at the time of the taking. [Footnote 7
] But this basic measurement of compensation has
been hedged with certain refinements developed over the years in
the interest of effectuating the constitutional guarantee. It is
one of these refinements that is in controversy here.
The Court early recognized that the "market value" of property
condemned can be affected, adversely or favorably, by the imminence
of the very public project that makes the condemnation necessary.
] And it was
perceived that 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. [Footnote 9
] On the other hand, the development of a public
project may also lead to enhancement in the market value of
neighboring land that is not covered by the project itself. And if
that land is later condemned, whether for an extension of the
existing project or for some other public purpose, the general rule
of just compensation requires that such enhancement in value be
Page 397 U. S. 17
wholly taken into account, since fair market value is generally
to be determined with due consideration of all available economic
uses of the property at the time of the taking. [Footnote 10
In United States v. Miller, 317 U.
, the Court gave full articulation to these
"If a distinct tract is condemned, in whole or in part, other
lands in the neighborhood may increase in market value due to the
proximity of the public improvement erected on the land taken.
Should the Government, at a later date, determine to take these
other lands, it must pay their market value as enhanced by this
factor of proximity. If, however, the public project from the
beginning included the taking of certain tracts, but only one of
them is taken in the first instance, the owner of the other tracts
should not be allowed an increased value for his lands which are
ultimately to be taken any more than the owner of the tract first
condemned is entitled to be allowed an increased market value
because adjacent lands not immediately taken increased in value due
to the projected improvement."
"The question then is whether the respondents' lands were
probably within the scope of the project from the time the
Government was committed to it. If they were not, but were merely
adjacent lands, the subsequent enlargement of the project to
include them ought not to deprive the respondents of the value
added in the meantime by the proximity of the improvement. If, on
the other hand, they were, the Government ought not to pay any
increase in value arising from the known fact that the lands
probably would be condemned. The owners ought
Page 397 U. S. 18
not to gain by speculating on probable increase in value due to
the Government's activities."
317 U.S. at 317 U. S.
There is no controversy in the present case regarding these
basic principles. The parties agree that, if the acreage in issue
was "probably within the scope of the project from the time the
Government was committed to it," substantially less compensation is
due than if it was not. For if the property was probably within the
project's original scope, then its compensable value is to be
measured in terms of agricultural use. If, on the other hand, the
acreage was outside the original scope of the project, its
compensable value is properly measurable in terms of its economic
potential as lakeside residential or recreational property.
The issue between the parties is simply whether the "scope of
the project" question is to be determined by the trial judge or by
the jury. There is no claim that the issue is of constitutional
dimensions. For it has long been settled that there is no
constitutional right to a jury in eminent domain proceedings.
See Baman v. Ross, 167 U. S. 548
167 U. S. 593
As Professor Moore has put the matter:
"The practice in England and in the colonies prior to the
adoption in 1791 of the Seventh Amendment, the position taken by
Congress contemporaneously with, and subsequent to, the adoption of
the Amendment, and the position taken by the Supreme Court and
nearly all of the lower federal courts lead to the conclusion that
there is no constitutional right to jury trial in the federal
courts in an action for the condemnation of property under the
power of eminent domain. [Footnote 11
Page 397 U. S. 19
It is not, therefore, to the Seventh Amendment that we look in
this case, but to the Federal Rules of Civil Procedure. Rule 71A(h)
provides that, except in circumstances not applicable here, "any
party" to a federal eminent domain proceeding "may have a trial by
jury of the issue of just compensation" unless the court, in its
discretion, orders that that issue "shall be determined by a
commission of three persons appointed by it. . . . Trial of all
issues shall otherwise be by the court." [Footnote 12
] The Rule thus provides that, except for
the single issue of just compensation, the trial judge is to decide
all issues, legal and factual, that may be presented. The critical
inquiry is thus whether "the issue of just compensation," as that
phrase is used in the Rule, is broad enough to embrace the question
whether the condemned property was probably within the scope of the
federal project. [Footnote
Page 397 U. S. 20
Although the matter could be decided either way without doing
violence to the language of Rule 71A(h), we think the Rule's basic
structure makes clear that a jury in federal condemnation
proceedings is to be confined to the performance of a single narrow
but important function -- the determination of a compensation award
within ground rules established by the trial judge. The Rule gives
the trial court discretion to eliminate a jury entirely. And when a
jury is afforded, the sweeping language of the final sentence of
the Rule discloses a clear intent to give the district judge a role
in condemnation proceedings much broader than he occupies in a
conventional jury trial. It is for him to decide "all issues" other
than the precise issue of the amount of compensation to be awarded.
It follows that it is for the judge to tell the jury the criteria
it must follow in determining what amount will constitute just
compensation, and that, in order to do so, he must decide the
"scope of the project" issue as a preliminary matter. We therefore
approve and adopt the procedural rule announced by the Court of
Appeals for the Fifth Circuit in Wardy v. United States,
402 F.2d 762, and hold that it is for the judge, and not the jury,
to decide whether the property condemned was probably within the
project's original Scope. [Footnote 14
Page 397 U. S. 21
Finally, the Government asks us to take this occasion to
"clarify" the "scope of the project" test. We think the test was
stated with admirable clarity by a unanimous Court in
if the "lands were probably within the scope of
the project from the time the Government was committed to it," no
enhancement in value attributable to the project is to be
considered in awarding compensation. As with any test that deals in
probabilities, its application to any particular set of facts
requires discriminating judgment. [Footnote 15
] The rule does not require a showing that the
land ultimately taken was actually specified in the original plans
for the project. It need only be shown that, during the course of
the planning or original construction, it became evident that land
so situated would probably be needed for the public use.
The judgment of the Court of Appeals is vacated, and the case is
remanded to the United States District Court for the Western
District of Kentucky for further proceedings consistent with this
It is so ordered.
Congress authorized the Nolin Reservoir Project in 1938 as part
of a comprehensive flood control plan for the Ohio and Mississippi
Act of June 28, 1938, § 4, 52 Stat. 1217.
Congress first appropriated funds for the planning stage of the
project in 1956. See
Public Works Appropriation Act of
1957, 70 Stat. 479. In July, 1958, the Chief of Army Engineers
approved a general design memorandum contemplating the construction
of recreational areas in connection with the project, but evidently
not specifying where they would be. The first funds for
construction were appropriated in 1958. See
Appropriation Act of 1959, 72 Stat. 1573. Construction began in
Most of the respondents' acreage condemned by the Government was
taken because it would be inundated by the reservoir, and there is
no question that this land was within the original scope of the
project. But 78 acres of the tract were taken for the construction
of recreational facilities adjacent to the reservoir itself. These
78 acres were not referred to in a design memorandum submitted in
June, 1959. They were, however, designated for taking in a
memorandum approved in October of that year. It has been Government
policy to build recreational areas in conjunction with federal
reservoir projects since 1944. Act of December 22, 1944, § 4, 58
United States v. 811.9 Acres of Land,
404 F.2d 303.
The Court of Appeals for the Fifth Circuit has held that the
"scope of the project" issue is to be determined by the trial
judge. Wardy v. United States,
402 F.2d 762, 763.
Monongahela Navigation Co. v. United States,
148 U. S. 312
148 U. S.
United States v. New River Collieries Co., 262 U.
, 262 U. S. 343
Seaboard Air Line R. Co. v. United States, 261 U.
, 261 U. S.
New York v. Sage, 239 U. S. 57
239 U. S. 61
Boom Co. v. Patterson, 98 U. S. 403
98 U. S.
Kerr v. South Park Commissioners, 117 U.
, 117 U. S.
Shoemaker v. United States, 147 U.
, 147 U. S.
United States v. Virginia Electric & Power Co.,
365 U. S. 624
365 U. S.
-636; United States v. Cors, 337 U.
, 337 U. S.
United States v. Chandler-Dunbar Water Power Co.,
229 U. S. 53
229 U. S. 81
Boom Co. v. Patterson, supra.
5 J. Moore, Federal Practice �38.32, p. 239 (2d ed.1969).
The full text of Rule 71A(h) is as follows:
"If the action involves the exercise of the power of eminent
domain under the law of the United States, any tribunal specially
constituted by an Act of Congress governing the case for the trial
of the issue of just compensation shall be the tribunal for the
determination of that issue; but if there is no such specially
constituted tribunal, any party may have a trial by jury of the
issue of just compensation by filing a demand therefor within the
time allowed for answer or within such further time as the court
may fix, unless the court in its discretion orders that, because of
the character, location, or quantity of the property to be
condemned, or for other reasons in the interest of justice, the
issue of compensation shall be determined by a commission of three
persons appointed by it. If a commission is appointed, it shall
have the powers of a master provided in subdivision (c) of Rule 53,
and proceedings before it shall be governed by the provisions of
paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action
and report shall be determined by a majority and its findings and
report shall have the effect, and be dealt with by the court in
accordance with the practice, prescribed in paragraph (2) of
subdivision (e) of Rule 53. Trial of all issues shall otherwise be
by the court."
In United States v. Miller, supra,
it appears that that
question was decided by the trial judge, who excluded all evidence
of enhanced value attributable to the project. 317 U.S. at
317 U. S.
-373. While this Court's opinion in Miller
approved of that procedure, it is to be remembered that the case
was decided before the adoption of Rule 71A(h) in 1951, at a time
when federal courts in condemnation proceedings followed the
procedures of the States in which they were located. See
Advisory Committee Notes to Rule 71A; 7 J. Moore, supra,
71 A. 03, p 2716 (2d ed.1968).
"The question was whether appellants' 'lands were probably
within the scope of the project from the time the Government was
committed to it.' . . . Appellants contend that the jury should
have been allowed to answer this question. Under rule 71A(h), the
jury's function is limited to determining 'just compensation.' It
is the duty of the court to decide the legal issues, as well as all
other fact issues. [Citations omitted.] Thus, instead of infringing
on the jury's functions, the judge merely decided a legal question
which limited the factors necessary to the determination of 'just
Wardy v. United States,
402 F.2d at 763. See also
Scott Lumber Co. v. United States,
390 F.2d 388, 392 (C.A. 9th
Cir.); United States v. 91.69 Acres of Land,
334 F.2d 229,
231-232 (C.A.4th Cir.).
Compare John L. Roper Lumber Co. v. United States,
F.2d 329, 332, with Scott v. United States,
146 F.2d 131,
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
All constitutional questions aside, there was in the present
case a right to trial by jury on "the issue of just compensation"
as provided in Rule 71A(h). I do not
Page 397 U. S. 22
see how "the issue of just compensation" can be decided without
considering whether or not the property was probably within or not
within the project's original scope. As the opinion of the Court
makes plain, important questions of value turn on that decision. In
this case, it is seen in the difference between the value of the
property as agricultural land and its value as potential lakeside
residential or recreational property.
If it were certain beyond doubt that the property was within the
original scope of the project, a different question might be
presented. But there is nothing in this record to show that
respondents' property was included in the original design. We deal
here with probabilities, or perhaps with possibilities. If the
property were not within the original design, a purchaser could
reasonably anticipate that he would be able to devote the land to
its highest economic use reflected in part by its proximity to the
Government's project. Henry George [Footnote 2/1
] would have it otherwise; but that has not
been the direction of our economy. Hence, what we are talking about
is market value, and that, in turn, includes all of the ingredients
that make up price. The most central element of price in the area
now litigated was the relation of the land to the original project,
and that issue was one of fact. The "issue of just compensation,"
] as used in Rule
Page 397 U. S. 23
truly cannot be resolved without considering that question.
There seems to be no reason why the jury chosen by Congress to
decide the final issue of "just compensation" should be denied the
power to determine the subordinate issues of fact upon which the
jury's final verdict must rest.
There are powerful forces loose in this country that deprecate
the use of juries. The Department of Justice and other federal
agencies [Footnote 2/3
] often seem
to dislike juries in
Page 397 U. S. 24
condemnation cases. In my Circuit, juries have unexpectedly
risen up in favor of homeowners and against Washington, D.C., and
granted "just compensation" in large sums in retaliation, it is
believed, against hard-nosed officials who, with all the power of
the central government, seek to plow them under. At other times,
the jury has acted differently, and cut down the award. [Footnote 2/4
] Juries in these condemnation
cases perform, in other words, an historic restraint on both
executive and judicial power. See Bushnell's Case,
How.St.Tr. 999, decided in 1670.
Progress and Poverty, Book VI (50th Ann. ed.1945).
In United States v. Certain Lands,
144 F. Supp. 206, a
road was taken, and the question of "just compensation" turned on
whether the construction of a substitute facility was necessary.
The court held that that issue of necessity was properly left to
"In the average condemnation proceeding, many factors must be
considered in arriving at just compensation, factors which are only
established and available after the exercise of a factfinding
process. There appears to be no reason for introducing a trial by
jury into condemnation proceedings unless the jury's province is
broad enough to include the weighing of evidence which directly
relates to the issue of compensation. It would seem that, in this
case, the determination as to whether any substitute facilities are
required at all is indeed a part of the 'issue of just
compensation,' one of the factors to be taken into account by the
jury in reaching its verdict."
The present Rule 71A, which, in absence of an Act of Congress,
gives the courts discretion to have the issue of compensation
decided by a commission of three, was inspired by the Act governing
condemnations by the TVA, which required the appointment of a
commission in all cases, 48 Stat. 70. See
Advisory Committee, 28 U.S.C. following Rule 71A. But that Act was
amended in 1968. See
82 Stat. 885, 13 U.S.C. § 831x (1964
ed., Supp. IV). Under the bill as reported out of the Senate
Committee on Public Works, either party had on demand "an absolute
right to a jury trial." S.Rep. No. 930, 90th Cong., 1st Sess.
"Proponents of the legislation indicated that no landowner
should be denied his basic right to a trial by jury involving the
condemnation of his property. In addition, it was indicated that
the absence of a right to a jury trial had generated friction
between TVA and landowners which was seriously affecting the public
relations of that agency."
The Senate Committee stated:
"While the committee makes no judgment as to the benefits of
either the commissioner or jury trial system, it does feel that a
right to trial by jury is basic to our American way of life, and
accordingly recommends adoption of this legislation."
That bill was amended on the floor of the Senate to modify the
provision for an absolute right to jury trial by making Rule 71A
applicable to TVA condemnation proceedings. The discussion in
support of this amendment, however, again stressed the general
dissatisfaction with the commission system, and emphasized the
right to jury trial in all but the most "extraordinary
circumstances." 113 Cong.Rec. 36979-36981.
See John L. Roper Lumber Co. v. United States,
329, where the jury refused the land owner any increment of value
occasioned by the land's proximity to the project.