Respondent property owner's expenses in securing appraisals of
the land involved in the United States' easement condemnation
action held not to constitute part of the "just compensation"
required by the Fifth Amendment for the taking of private property
for public use. Since this litigation no more than reflects the
rather typical situation where the landowner is dissatisfied with
the Government's valuation, the case does not qualify as an
exception to the general rule that indirect costs to the property
owner caused by the taking of his land are generally not part of
the just compensation to which he is constitutionally entitled.
Certiorari granted 574 F.2d 238, reversed and remanded.
PER CURIAM.
The United States brought this condemnation action to acquire a
permanent easement in land owned by the respondent. The jury
determined that just compensation for the easement was $146,206 a
sum about halfway between the Government's offer and the
respondent's claim. The District Court granted the respondent's
motion to increase the award by $20 512.50 to compensate it for the
expenses of securing appraisals of the land and for the fees of
expert witnesses. A divided panel of the Court of Appeals for the
Fifth Circuit affirmed the award in part, holding that the
appraisal fees in this case were an appropriate part of the
compensation required by the Fifth Amendment:
"Under the facts of this case, we cannot conclude that the
Bodcaw Company has been made whole for the Government's taking of
its land if the large amount expended by it for appraisals in order
to demonstrate the unfairness of the price offered by the United
States is not considered
Page 440 U. S. 203
an element of just compensation."
United States v. 1,380.09 Acres of Land, 574 F.2d 238,
241 (1978). [
Footnote 1]
The Fifth Amendment forbids the taking of "private property . .
. for public use, without just compensation." This Court has often
faced the problem of defining just compensation. One principle from
which it has not deviated is that just compensation "is for the
property, and not to the owner."
Monongahela Navigation Co. v.
United States, 148 U. S. 312,
148 U. S. 326
(1893). As a result, indirect costs to the property owner caused by
the taking of his land are generally not part of the just
compensation to which he is constitutionally entitled.
See,
e.g., Dohany v. Rogers, 281 U. S. 362
(1930);
Mitchell v. United States, 267 U.
S. 341 (1925);
Joslin Mfg. Co. v. Providence,
262 U. S. 668
(1923).
See generally 4A J. Sackman, Nichols' Law of
Eminent Domain, ch. 14 (rev. 3d ed.1977). Thus, " [a]ttorneys' fees
and expenses are not embraced within just compensation. . . ."
Dohany v. Rogers, supra, at
281 U. S.
368.
There may be exceptions to this general rule. This case,
however, does not qualify as such an exception. [
Footnote 2] As the dissenting judge in the
Court of Appeals described this litigation, it no more than
reflects "the rather typical, oft-recurring situation where the
landowner is dissatisfied with the Government's valuation." 574
F.2d at 242. The court, therefore, was in error in holding that the
respondent was entitled to compensation for the costs of the
appraisals it had had made. [
Footnote 3]
Page 440 U. S. 204
Perhaps it would be fair or efficient to compensate a landowner
for all the costs he incurs as a result of a condemnation action.
See Ayer, Allocating the Costs of Determining "Just
Compensation," 21 Stan.L.Rev. 693 (1969). Congress moved in that
direction with Pub.L. 91-646, 84 Stat. 1894, codified at 42 U.S.C.
§§ 4601-4655. Among other costs which the Act placed on the
Government were the property owner's reasonable litigation expenses
(including attorney's fees) when a condemnation action is dismissed
as being unauthorized, when the Government abandons a condemnation,
or when the property owner has recovered through an inverse
condemnation action under the Tucker Act. 42 U.S.C. § 4654. But
such compensation is a matter of legislative grace, rather than
constitutional command. The respondent's appraisal expenses were
not part of the "just compensation" required by the Fifth
Amendment.
The petition for certiorari is granted, the judgment is
reversed, and the case is remanded to the Court of Appeals for the
Fifth Circuit for proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
The Court of Appeals reduced the award by the amount of
compensation allowed by the trial court for expert witness
fees.
[
Footnote 2]
The Court of Appeals relied on its previous decision in
United States v. Lee, 360 F.2d 449 (1966). In that case
the court allowed as part of a compensation award the owner's
expenses in having a survey made of the land to be taken. But the
Lee case involved misrepresentation on the part of the
Government as to the amount of land to be taken. Even if correctly
decided, therefore, that case presented a situation quite different
from the present case, where no such misrepresentation was
alleged.
[
Footnote 3]
The Court of Appeals necessarily rested its decision on
constitutional grounds. It is settled that litigation costs cannot
be assessed against the United States in the absence of statutory
authorization.
United States v. Worley, 281 U.
S. 339,
281 U. S. 344
(1930). Although Congress has provided that court costs may
sometimes be assessed against the Government when the opposing
party prevails, 28 U.S.C. § 2412, that authorization does not apply
to condemnation cases. Fed.Rule Civ.Proc. 71A(1);
United States
v. 2,186.6 Acres of Land, 464 F.2d 676 (CA10 1972);
United
States ex rel. TVA v. An Easement, 452 F.2d 729 (CA6 1971).
Thus, even if the appraisal expenses in this case were to be
considered "costs," they could not be taxed to the United States.
Congress has provided that appraisal fees will be paid by the
Government in some condemnation cases, but this case does not fall
within the scope of that provision. 42 U.S.C. § 4654.