Footnotes

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).

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”).

Indian Creek Marble Co. , 40 F. Supp. at 818.

Bauman , 167 U.S. at 581.

Id. at 223 & n.9, 224 (noting that “in demanding evidence pertaining to the structure of the reservoir, the commission misconceived the issue of special benefits”).

See, e.g. , Davenport , 436 F.2d at 400-01 (valuation by appraiser who was correctly “instructed to appraise the ‘after’ value of the subject property considering the reservoir enhancement,” as a direct and special benefit of the government’s acquisition, was “the only [opinion] which has probative value and discloses the proper compensation”); see also Hendler , 175 F.3d 1374.

Id.

Agencies may need to instruct the appraiser to allocate the result of a before and after valuation between the value of the property being acquired, and damages (and/or benefits) to the remainder – for example, for negotiating purposes and/or to comply with agency obligations under the Uniform Act. See 42 U.S.C. § 4561(3). Such an allocation should be reported in a separate, supplemental report, rather than in

Id. (quoting United States v. Miller , 317 U.S. 369, 374, 375 (1943); see also United States v. 320 Acres of Land , 605 F.2d 762, 781-89 (5th Cir. 1979) (exploring history and underlying principles of scope of the project rule and treatment of benefits due to government project).

United States v. Fuller , 409 U.S. 488, 492 (1973).