 


                                                 NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                        ______________

                       Nos. 17-2096 & 17-3312
                          ______________

               COLUMBIA GAS TRANSMISSION, LLC

                                 v.

           AN EASEMENT TO CONSTRUCT OPERATE AND
       MAINTAIN A 20 INCH GAS TRANSMISSION PIPELINE
         ACROSS PROPERTIES IN WASHINGTON COUNTY,
        PENNSYLVANIA, OWNED BY ANGELO QUARTURE;
        JESSICA QUARTURE, Parcel ID 520-015-00-00-0024-04
             and 520-015-01-02-0019-00; SAMUEL KRAEER;
        LORRAINE KRAEER, Parcel ID 600-002-00-00-0012-00;
           WILLIAM E. GRIFFITH, JR.; PAMELA GRIFFITH,
                   Parcel ID 600-001-01-02-004-03 and
               600-001-01-02-0004-02; PAUL CAMPBELL;
          LISA CAMPBELL, Parcel ID 100-025-00-00-0001-01;
       PATRICK MCLAUGHLIN; ANASTASIA MCLAUGHLIN,
       Parcel ID 170-006-00-00-0004-001, 100-024-00-00-0003-00,
           360-011-00-02-0048-00 and 170-006-00-00-0006-00;
                     BRUCE COEN; JANICE COEN,
                   Parcel ID 600-007-00-00-0045-00 and
            600-007-00-00-0044-00; NANCY N. NERNBERG;
          CAROL SOVCHEN, Parcel ID 600-007-00-00-0054-00
            and 600-007-00-00-0056-00; *TERRY KUBACKA,
           Parcel ID 600-007-00-00-0056-00; CARA DOBBIN,
          Parcel ID 600-007-02-00-0003-13; DOUGLAS BURIG;
        REBECCA BURIG, Parcel ID 600-004-02-00-0003-01 and
         600-004-02-00-0003-06; EDWARD KOCI; LOIS KOCI,
      Parcel ID 600-002-00-00-0010-02 and 600-002-00-00-0010-06;
    GREGORY KLINE; ANN KLINE, Parcel ID 600-007-00-00-0001-11;
            DAVID PODOLINSKY; KRISTIN PODOLINSKY,
         Parcel ID 600-004-00-00-0001-10; ANGELO FALCONI;
       PHILLIP FALCONI, Parcel ID 520-015-00-00-0026-00 and
          170-006-00-00-0013-00; EDWARD C. MORASCYZK,
              Trustee of the Angelo Falconi Irrevocable Trust


 
 


                            Parcel ID 600-001-00-00-0047-00 and 600-001-00-00-0047-01;
                           PRANCING HORSE FARMS, Parcel ID 300-001-00-00-0046-00;
                                    AMANDA JEAN YETTER; JAMES YETTER,
                            Parcel ID 520-011-00-00-0003-13; STEPHAN STAYDUHAR;
                           KATHERINE STAYDUHAR, Parcel ID 520-001-00-00-0003-02;
                               UNKNOWN PERSONS AND INTERESTED PARTIES

                                                   Nancy Nernberg, Carol Sovchen, *Terry Kubacka,
                                                                                           Appellants

                                            *(Dismissed pursuant to Clerk’s Order of 12/28/17)

                                                                    ______________

                              APPEAL FROM THE UNITED STATES DISTRICT COURT
                               FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                                             (D.C. No. 2:16-cv-01243)
                                       District Judge: Hon. Mark A. Kearney
                                                  ______________

                                                   Submitted under Third Circuit L.A.R. 34.1(a)
                                                                  July 12, 2018
                                                                ______________

                                 Before: SHWARTZ, ROTH, and RENDELL, Circuit Judges.
                                               (Filed: August 9, 2018)

                                                                    ______________

                                                                       OPINION*
                                                                    ______________


SHWARTZ, Circuit Judge.

               Nancy Nernberg, Carol Sovchen, and Terry Kubacka (collectively, the

“Landowners”) appeal from a jury verdict awarding them $47,000 as just compensation


                                                                 
               *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
                                                                          2 
 
 


for the condemnation of an easement for a natural gas pipeline across their property (the

“Property”) by Columbia Gas Transmission, LLC (“Columbia”). For the reasons set

forth below, we will affirm.

                                                                    I

               Columbia is in the process of replacing steel pipelines near the Pennsylvania-West

Virginia border to modernize its existing infrastructure. Columbia acquired the rights-of-

way across most of the properties affected by the project, and in 2016, it filed a

condemnation action in the United States District Court for the Western District of

Pennsylvania, pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h), and Federal Rule of

Civil Procedure 71.1, to condemn additional property necessary to complete the project.

Columbia condemned the rights-of-way across twenty-nine properties and settled with

most of the property owners. Columbia and the Landowners agreed that Columbia would

be granted access to the Property to begin construction of the pipeline, and Columbia

condemned a permanent easement of 1.75 acres and temporary easements of 2.68 acres

across the Landowners’ 56.8-acre Property, but the parties went to trial over the amount

of just compensation.

               To assist the jury in determining the impact of the easement on the Property’s

value, Columbia called two experts who testified that the easement decreased its value by

$31,000.1 The Landowners testified that they had no current plans to develop the

Property and sought to continue using it for outdoor recreation, but they nonetheless

                                                                 
               1
         This amount consisted of the diminution in fair market value of the property and
the cost to replant trees in the temporary easements.
                                                                    3 
 
 


sought to offer expert testimony regarding the value of the lots that could be built and

sold on the Property if it were subdivided. The District Court granted Columbia’s motion

to exclude the testimony regarding lost profits from such development because the

Landowners admitted they had no plans or intent to develop the Property. The

Landowners were permitted, however, to testify that the partial condemnation reduced

the value of the Property by half because it would cut off 40 acres that could be used for

residential development.

               The Landowners’ expert real estate appraiser testified that if the easement could

not be crossed by paved roads, the value of the Property following condemnation would

be $240,000, but the expert did not testify as to the value of the Property before

condemnation. Columbia responded by presenting evidence that development near

pipelines is common, that Columbia has a custom and practice of accommodating

requests for paved roads to cross its pipelines, and that Columbia was

willing to permit a crossing of the easement, but that the Landowners never requested

such permission. One Columbia witness testified that in her career with the company

handling hundreds of requests, she had never seen such a request denied.

               The jury returned a verdict of $47,000 for Appellants consisting of $23,000 for the

diminution in fair market value of the Property and $24,000 for the costs for replacing

and replanting the trees removed from it.2

               The Landowners appeal.

                                                                 
               2
       The judgment was subsequently amended to include interest, for a total final
judgment of $48,622.47.
                                                                    4 
 
 


                                                                    II3

                                                                    A

               The Landowners argue the District Court erred in excluding expert testimony

regarding a valuation of the Property based on its future profitability from residential

development. The admissibility of expert testimony is committed to the discretion of the

trial court, and we review its ruling for abuse of discretion. United States v. 68.94 Acres

of Land, 918 F.2d 389, 392 (3d Cir. 1990) (citing Linkstrom v. Golden T. Farms, 883

F.2d 269, 269 (3d Cir. 1989)).

               In condemnation actions under the Natural Gas Act, the landowner has the burden

of proving just compensation owed for the condemned property.4 See United States v.

33.92356 Acres of Land, 585 F.3d 1, 7 (1st Cir. 2009); 68.94 Acres, 918 F.2d at 392.

Just compensation is measured by “the fair market value of the property on the date it is

appropriated.” Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 9-10 (1984)

(citations and internal quotation marks omitted). Fair market value is determined by

considering the property’s “highest and best use,” which means that the landowners

whose property is condemned must “receive the value of the highest and best use for

which the property is adaptable in the reasonably near future from the vantage point of


                                                                 
               3
         The District Court had jurisdiction under 15 U.S.C. §§ 717 et seq. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
       4
         Federal law governs the measure of just compensation owed to landowners in
condemnation actions under the Natural Gas Act. See United States v. Certain Parcels of
Land, 144 F.2d 626, 628-30 (3d Cir. 1944) (citing United States v. Miller, 317 U.S. 369,
380 (1943)).

                                                                    5 
 
 


the date of the taking.” 68.94 Acres, 918 F.2d at 393 (citing Olson v. United States, 292

U.S. 246, 255 (1934)). The “guiding principle” of just compensation is that the property

owner “must be made whole but is not entitled to more.” United States v. 6.45 Acres of

Land, 409 F.3d 139, 145 n.11 (3d Cir. 2005).

         To determine just compensation in a partial condemnation case such as this one,

the landowner must establish the “difference between the market value of the entire

holding immediately before the taking and the remaining market value immediately

thereafter of the portion of property rights not taken.” 68.94 Acres, 918 F.2d at 393 n.3.

A landowner may establish just compensation through expert testimony as to the

property’s value before and after the taking, but “mere speculative uses of the property

should not be entertained by the factfinder.” Id. at 393.

       For expert testimony to be admissible under Federal Rule of Evidence 702 and

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993), the

proffered witness must (1) be qualified, (2) testify about matters requiring scientific,

technical, or specialized knowledge, and (3) assist the trier of fact. United States v.

Schiff, 602 F.3d 152, 172 (3d Cir. 2010). To assist the trier of fact, the expert opinion

must “fit,” i.e., it must be “sufficiently tied to the facts of the case that it will aid the jury

in resolving a factual dispute.” Id. at 173 (quoting Daubert, 509 U.S. at 591).

       Here, the District Court properly exercised its discretion in excluding the

Landowners’ proffered expert testimony regarding the future profitability of the Property.

The Landowners sought to introduce expert testimony concerning the profits they could

make if they subdivided the Property and sold the individual lots or sold the whole lot for

                                                 6 
 
 


residential development, even though they had no plans or intent to develop any portion

of the Property. Because the Landowners had no intention to develop the Property and

had taken no meaningful steps in that direction, any projections regarding subdivision

and future sales to be derived therefrom would be speculative. 68.94 Acres, 918 F.2d at

393. The proffered testimony thus failed to fit the facts of the case, and therefore, the

District Court properly exercised its discretion in excluding it.5

                                                                    B

               The Landowners next argue the District Court erred in permitting Columbia to

submit evidence regarding its custom and practice of accommodating development,

including crossings, over its pipeline easements. The Landowners relatedly assert the

District Court improperly instructed the jury to assume Columbia would fully utilize all

rights to the easement but then instructed the jury it could consider evidence that

Columbia had in the past allowed crossings over its pipeline easements. Specifically, at

trial, the Court instructed the jury to

               assume Columbia Gas will make the fullest use of the easement taken. You
               must assume the use of the easement by Columbia Gas will be in a manner
               as injurious to the landowners’ remaining rights in the property as the
               easement rights taken by Columbia Gas will lawfully permit.

               But Columbia Gas has a defense for which it bears the burden of proof of
               showing by a preponderance of the evidence that it has granted permission
               for landowners and would grant permission to these landowners to use the
               easement consistent with Columbia Gas’s approval.




                                                                 
               5
         To the extent the Landowners challenge Columbia’s expert’s testimony, we find
their challenge without merit.
                                                                    7 
 
 


App. 1247. The Landowners objected to the charge, arguing that the Court, not the jury,

had to decide whether waiving rights to the easement was legally permitted. The Court

responded:

       No. Here’s why not . . . because whether it’s legally permissible in this case
       depends on whether the jury believed that Columbia Gas routinely or always
       [] offered to give the right to cross over the easement.

       Your entire case seems to be I can’t cross over the easement. Columbia Gas
       has the right to say yes, you can. And the jury has to decide who to believe
       there.

       Just because the legal document says it doesn’t mean Columbia Gas can’t
       waive it. Columbia Gas is saying we’re waiving it. . . .

App. 980. The District Court rejected the Landowners’ argument that interpreting a legal

document concerning Columbia’s full rights to the easement was an issue for the Court to

decide. It concluded that the issue was whether Columbia could have waived that right,

which it properly characterized as “an evidentiary dispute concerning whether the jury

thinks there’s a waiver” of Columbia’s right to bar use of the easement. App. 980. On

appeal, the Landowners do not challenge the sufficiency of the evidence regarding the

jury’s verdict but rather argue that it was improper for the jury to speculate about whether

Columbia would waive its right to full use of the easement and allow development over

it, and that such speculation may have impacted its verdict. The Landowners also assert

that the Court’s instructions were erroneous because Columbia’s position concerning the

use of the easement was unambiguous.

       “We review the District Court’s decision to admit evidence for abuse of

discretion,” United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001), and “we exercise


                                             8 
 
 


plenary review to determine whether jury instructions misstated the applicable law,”

Egan v. Delaware River Port Auth., 851 F.3d 263, 269 (3d Cir. 2017) (citation omitted),

“but in the absence of a misstatement we review for abuse of discretion,” Cooper Distrib.

Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir. 1999). Here, the District

Court properly exercised its discretion to admit evidence of Columbia’s custom and

practice of accommodating crossings over its pipelines and to instruct the jury regarding

the same. The evidence was relevant to calculating just compensation because the

Landowners’ expert testified that if the easement could not be crossed by paved roads,

the value of the Property following condemnation would be $240,000. It was therefore

appropriate for Columbia to respond with evidence that it had a custom and practice of

accommodating requests for crossings over its pipelines but that the Landowners had

never made such a request. Moreover, one of Columbia’s witnesses testified that

Columbia was willing to accommodate a crossing of the easement on the Property—and

in fact, the witness, who had handled hundreds of requests in her career at Columbia, had

never seen a request for accommodation denied—but that to provide such an

accommodation, the Landowners would need to ask for it. Thus, evidence of Columbia’s

custom and practice was relevant to an issue in dispute, namely, the impact of the

easement on the ability to use and enjoy the Property, which in turn affected just

compensation, an issue squarely within the jury’s province. Fed. R. Civ. P.

71.1(h)(1)(B).

       Moreover, the instructions were proper because they made clear to the jury that, in

deciding just compensation, it could consider the fact that Columbia had a history of

                                             9 
 
 


waiving its rights to full use over its pipeline easements and accommodating a property

owner’s request to develop the area in or around the pipeline, because such

accommodations would affect just compensation owed. The instructions were not

contradictory and, in light of the evidence Columbia presented, did not lead the jury to

speculate as to whether Columbia would grant the Landowners access to the easement.

Therefore, the District Court properly exercised its discretion in submitting this issue to

the jury and instructing the jury about it.

                                              III

       For the foregoing reasons, we will affirm.




                                              10 
 
