4.6.5.3. Appurtenant Easements to the Servient Estate.Slightly different valuation issues arise when the United States’ acquisition of a servient estate also acquires or extinguishes a third party’s appurtenant easement; for example, in a fee acquisition of Owner A’s parcel through which Owner B has an access easement to connect B’s other property to a highway. In such an acquisition, Owner A is entitled to compensation for “what the owner has lost”—i.e., the encumbered fee.907 And Owner B, “the owner of a condemned access easement[,] is entitled to compensation for the diminution in value of the property which it serves.”908 In such instances, departure from the unit rule “may be necessary to avoid grossly unjust results[,]”909 as the usual valuation of the property as an undivided fee would not result in just compensation.910 

The federal courts’ solution to this valuation challenge reflects “[t]he guiding principle of just compensation . . . that the owner of the condemned property ‘must be made whole but is not entitled to more.’” 911 Acquisitions of this sort involve two larger parcels and require two appraisal assignments: 

• To measure compensation for Owner A, one appraisal must develop an opinion of the value of the encumbered fee (discussed in Section 4.6.5.2), “tak[ing] into account all encumbrances on the land.”912 This is because “the Constitution does not require a disregard of the mode of ownership,—of the state of the title.”913 Just compensation will not result if a parcel of land is “valued as an unencumbered whole when it is not held as an unencumbered whole.”914 The appraisal of the encumbered fee may require a before and after valuation if the acquisition is only a portion of a larger parcel.915 

• To measure compensation for Owner B, another appraisal must develop an opinion of the value of the appurtenant easement (discussed in Section 4.6.5.1), which “cannot be ascertained without reference to the dominant estate to which it was attached.”916 As a partial acquisition, the before and after rule applies, so the appraiser must develop an opinion of the value of the property served by the easement before (with the easement) and after (without the easement) the government’s acquisition.917 The difference between the before and after values is the measure of compensation. 

In neither appraisal will the appraiser develop an opinion of the market value of the property as if unencumbered. The value of the undivided fee is simply not relevant to compensation for such peculiar acquisitions, as the Fourth Circuit reasoned:

[W]ith property whose use is divided, . . . the compensation to be paid to any one whose interest is taken must be reckoned by the value of the use to which he is entitled and not by the value which the land, if unencumbered, would have.918 

Moreover, as the Fourth Circuit recognized, while the “sum of these values may at times approximate the value of the unencumbered fee[,]” it may be “much less. Indeed, the sum of these values may be only nominal.”919