[239 U.S. 57, 58] Messrs, Louis C. White, William Mcm. Speer, and Frank L. Polk for petitioner.
[239 U.S. 57, 59] Mr. Edward A. Alexander for respondent.
Mr. Justice Holmes delivered the opinion of the court:
This is a proceeding for the taking of land for the Ashokan reservoir, similar to the one before us in McGovern v. New York, 229 U.S. 363 , 57 L. ed. 1228, 46 L.R.A.(N.S.) 391, 33 Sup. Ct. Rep. 876. After commissioners were appointed to ascertain the compensation to be paid, the case was removed to the circuit court, diverse citizenship being alleged. There was a motion to remand which was overruled, and subsequently the commissioners reported that 'the sum of $7,624.45 for land and buildings and the further sum of $4,324.45 for reservoir availability and adaptability, being a granted total of the sum of $11,948.90, is the sum ascertained and determined by us . . . to be paid to the owners of and all persons interested in said land for the taking of the fee thereof, designated . . . as Parcel 733.' They also recommended the allowance of 5 per cent on the above award for legal fees and expenses, and of $1,372.31 to named witnesses in specified sums. The report was confirmed by the circuit judge ( 190 Fed. 413), and afterwards by the circuit court of appeals (124 C. C. A. 251, 206 Fed. 369).
Upon an inspection of the record it appears to us, as the language of the commissioners on its face suggests, that their report does not mean that the claimant's land had a [239 U.S. 57, 61] market value of $11,948.90,-that it would have brought that sum at a fair sale,-but that they considered the value of the reservoir as a whole and allowed what they thought a fair proportion of the increase, over and above the market value of the lot, to the owner of the land, subject to the opinion of the court upon the point of law thus raised. Upon that point we are of opinion that they were wrong.
The decisions appear to us to have made the principles plain. No doubt when this class of questions first arose it was said in a general way that adaptability to the purposes for which the land could be used most profitably was to be considered; and that is true. But it is to be considered only so far as the public would have considered it if the land had been offered for sale in the absence of the city's exercise of the power of eminent domain. The fact that the most profitable use could be made only in connection with other land is not conclusive against its being taken into account, if the union of properties necessary is so practicable that the possibility would affect the market price. But what the owner is entitled to is the value of the property taken, and that means what it fairly may be believed that a purchaser in fair market conditions would have given for it in fact,-not what a tribunal at a later date may think a purchaser would have been wise to give, nor a proportion of the advance due to its union with other lots. The city is not to be made to pay for any part of what it has added to the land by thus uniting it with other lots, if that union would not have been practicable or have been attempted except by the intervention of eminent domain. Any rise in value before the taking, not caused by the expectation of that event, is to be allowed, but we repeat, it must be a rise in what a purchaser might be expected to give.
It is said that in this case there was testimony that the lot was worth more than the total allowed. But the only [239 U.S. 57, 62] explanation of the separation of items by the commissioners is that they were not prepared to say that the market value of the lot was $11,948.90, seeing that the claimant bought it a few days before for $4,500, but that they thought the additional value gained by the city's act should be taken into account and shared between the city and the owner of the land,-a proposition to which we cannot assent. Minnesota Rate Cases (Simpson v. Shepard) 230 U.S. 352, 451 , 57 S. L. ed. 1511, 1562, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729; McGovern v. New York, 229 U.S. 363, 372 , 57 S. L.ed. 1228, 1232, 46 L.R.A.(N.S.) 391, 33 Sup. Ct. Rep. 876.
The motion to remand was made on the ground that Sage bought after the condemnation proceedings were commenced, and therefore was not entitled to remove the suit to the circuit court. The maps showing the parcels of real estate to be taken had been filed and notices had been posted on the property before the conveyance to Sage, but the petition for the appointment of commissioners was not filed until after it had been made. We see no reason to differ from the opinion of the judges below that the proceeding was not commenced at the date when Sage took.