Footnotes

Miller , 317 U.S. at 375.

See Piza-Blondet , 585 F.3d at 9 (refusing alternative valuation method when there was “no persuasive reason why the before and after method would be unfair in assessing the value”); United States v. 12.94 Acres of Land in Solano Cty. , No. CIV. S-07-2172, 2009 WL 4828749, at *5-*6, 2009 U.S. Dist LEXIS 114581, at *15-*21 (E.D. Cal. Dec. 9, 2009) (error to analyze value of the part taken separately from the total); cf.

Piza-Blondet, 585 F.3d at 9 n.6 (citing 4A nichols, ThelAw oFeminenTdomAin § 14.02[4] (rev. 3d ed. 1981)); United States v. 760.807 Acres of Land in Honolulu, 731 F.2d 1443, 1445 (9th Cir. 1984) (“Using [the before and after] method, any diminution in value of the remainder resulting from the taking and use of part of the original parcel, sometimes termed ‘severance damages,’ would be included in the award.”); cf. United States v. 901.89 Acres of Land in Davidson & Rutherford Ctys. (Davenport), 436 F.2d 395, 399 (6th Cir. 1970) (reversing lower court’s rejection of before and after valuation that reflected direct and special benefits to remainder after taking); United States v. Werner, 36 F.3d 1095, 1994 WL 507461, at *5…

Indian Creek Marble Co., 40 F. Supp. at 818-19 (“the inevitable result would be that the land owner would twice receive incidental damages, either in cash compensation or partly in cash and partly in incidental benefits”); see, e.g., eATon, supra note 16 at 32-33 (noting a “chronic and dangerous problem—double damage, i.e., the duplication of just compensation” and illustrating “how easy it is to double damage using the taking plus damages (state) rule”).

Id. at 731 (“Again the conclusion that the landowner was overcompensated . . . ineluctably follows.”); see also Indian Creek Marble Co. , 40 F. Supp. at 818-19.

2.33 Acres , 704 F.2d at 729-31. The vacated award valued the larger parcel before the taking at $296,870 and the remainder after the taking at $240,663, a difference of approximately $56,000, yet would have awarded total compensation in excess of $200,000. See id.

While the Fourth Circuit previously broke from other federal courts in adopting the taking plus damages method, it subsequently embraced the federal before and after rule, observing “it is well settled that in the event of a ‘partial taking’ the measure of just compensation is the difference

Bos. Chamber of Commerce v. City of Boston , 217 U.S. 189, 195 (1910), quoted in Brown v. Legal Found. of Wash., 538 U.S. 216, 236 (2003); Bauman,

See McCoy v. Union Elevated R.R. Co. , 247 U.S. 354, 365 (1918); Harris v. United States , 205 F.2d 765, 767 (10th Cir. 1953) (distinguishing between federal and state constitutional provisions for just compensation); cf. eATon, supra note 16, at 41-42 & nn.26-31 (“most authorities argue that the complexity of the state rule and its potential for double damages are so great that the before and after rule should be adopted”).

Under federal law, “if the taking has in fact benefitted the remainder, the benefit may be set off against the value of the land taken.” United States v. Miller, 317 U.S. 369, 376 (1943); Bauman v. Ross, 167 U.S. 548, 584 (1897).