4.6.5.1. Dominant Easement Interests.Compensation for the acquisition of a dominant easement interest is measured by “the difference in the value of the servient land before and after the Government’s easement was imposed.”876 Accordingly, federal acquisitions of dominant easement interests must be valued using a before and after methodology, reflecting compensable damage and special (direct) benefits to the remainder, as with all other partial acquisitions.877 

If an acquisition imposes an easement upon an entire ownership, there is a remainder estate in the land within the easement.878 If the easement is impressed upon less than the full area of the larger parcel, the remainder will also include the portion of the parcel outside the easement.879 In either setting, it is well established that “[t]he valuation of an easement upon the basis of its destructive impact upon other uses of the servient fee is a universally accepted method of determining worth.”880 Accordingly, in a valuation involving acquisition of a dominant easement, the appraiser must clearly understand the specific terms of the easement involved to analyze the burden the easement imposes on the servient estate and the resulting impact on the value of the affected land.881 As the Sixth Circuit observed, “for the commissioners to determine the ‘before and after’ value of the land, it was necessary that they clearly understood what rights the landowner would retain in the land subject to the easement.”882

For example, consider the acquisition of an easement with the right “to cut and remove any and all trees now or hereafter growing” alongside a right of way.883 To develop an opinion of market value, the appraiser must understand whether or not the tree-cutting privilege is “coupled with liability for future cuttings” under the terms of the easement:884 

It is conceivable that the market value of [remainder] land would vary as between the alternatives. . . . What difference would the choice make to a prospective purchaser? What difference would it make in the market value of the land? . . . [S]peculative damages need not be considered, except as an estimate of them might affect market value.885 

A district court explained these considerations as follows: 

The question is, how does the easement affect the market price of the property? Here again we have the willing and intelligent buyer and seller, neither acting under compulsion. They agree upon a price before the easement is imposed. 

But before the sale is closed the easement is imposed. They meet again, both willing to deal on the basis, of course, of the fair market value. But the situation is changed in one particular— the imposition of the easement or easements. The question is, how does the changed situation affect the market price? 

The willing prospective buyer examines the instrument creating the outstanding easement as to its terms, whether it is perpetual; to what extent does it limit the use of the servient estate, and what are the maximum uses granted by the instrument? All in all, how much less valuable do the outstanding easements make the whole property?886 

Federal courts have rejected other methods for valuing dominant easement interests—even though those methods may be accepted in other settings—because they do not reflect just compensation under the Fifth Amendment.887 Thus, where only an easement is acquired, the full fee value of the land within the easement is not a proper measure of damages since the rights remaining in the owners of the servient estate may be substantial.888 Moreover, valuing only the area subject to the easement (i.e. “strip valuation”) fails to “compar[e] the fair market value of the entire tract affected by the taking before and after the taking . . . [that is] the correct measure of value in federal court condemnation.”889 170