Full opinion text
JOHN R. BROWN, Chief Judge: The Just Compensation Clause of the Fifth Amendment, which provides that private property shall not be taken without just compensation, is one of the most basic constitutional guarantees that the rights of the individual will not be unfairly sacrificed in the pursuit of the common weal. In this eminent domain case, appellant landowners claim that this constitutional guarantee has been breached, that because of numerous substantive and procedural errors in the proceedings below they have not been adequately and justly compensated for the loss of their properties condemned by the Federal Government. The public project in this case is Everglades National Park, which covers approximately 2000 square miles of the southernmost portion of the Florida peninsula. The compensation trials below involved 63 tracts (totalling approximately 788 acres) taken for inclusion within the Park. The owners of 52 of the tracts have appealed. Among the issues they present is the proper application of the “scope of the project” rule and the principle of “highest and best use.” We vacate because of procedural deficiencies, but we also enunciate the legal standards of just compensation that are to guide retrial of the 52 tracts appealed, as well as literally hundreds of other properties condemned for Everglades National Park and the neighboring Big Cypress National Preserve. Because the history of Everglades National Park is so important to a proper understanding and just resolution of this case, our opinion begins with a brief review of that history. Then, in Part I, we recount the proceedings in the District Court, including the procedural error which invalidated those proceedings almost before they began. After an overview of the basic principles of just compensation law in Part II, we turn to the important substantive issues raised by this appeal. With respect to the scope of the project rule, we first discuss the rule generally (Part IIIA), including its underlying precepts and how it has been applied in other major federal court decisions. We then review several errors in its application by the District Court to the facts of these Everglades condemnation proceedings (Part IIIB), followed by a discussion of how the rule should be applied upon remand (Part IIIC). We conclude our consideration of the rule with a discussion of the differing responsibilities it imposes upon the judge and the fact-finder in just compensation trials (Part HID). In Part IV, we review an evidentiary ruling concerning the admissibility of certain “comparable sales” in the trials below. Important issues concerning “highest and best use” and compensation for “illegal uses” are discussed in Parts V and VI respectively. Part VII is devoted to several miscellaneous evidentiary issues that arose during the District Court trials, including the admissibility of just compensation statements sent landowners prior to the institution of eminent domain proceedings. Finally, in Part VIII, we remand the issue of just compensation in these cases for trial by a commission in lieu of trial by a jury. Everglades National Park And The Northwest Extension The origins of this case trace back to 1929 when the Federal Government first began to investigate the prospects of establishing a National Park in the Everglades. In 1930, the Secretary of the Interior recommended the establishment of a national park encompassing about 2000 square miles (1,280,000 acres) of the southern tip of the Florida peninsula, and in 1934 Congress took the first tentative steps toward establishment of the Park. However, largely because Congress refused to authorize purchase of parklands with public money, Everglades National Park did not become a reality until 1947, when it was established and dedicated with a nucleus of 454,000 acres granted by the State of Florida. In addition to the land donations, the State of Florida made available to the Federal Government $2,000,000 with which the Department of the Interior began to acquire privately owned lands within the designated Park boundaries. After certain changes in the park boundaries declared by the Secretary of the Interior, Congress, in the Act of July 2, 1958, officially redefined the park boundaries, since when the dimensions of the Park have not been changed. The 1958 Act included within the Park for the first time an area known as the Northwest Extension, in which the properties involved in this case are located. Overall, the 1958 Act increased the size of the Park to 1,390,000 acres, of which all but 197,000 acres were at that time owned by the United States. Of these 197,000 acres, some were contemplated to remain in private ownership, some were to be donated to the Federal Government, and 81,000 acres — among , them the 788 acres at issue in this case — were to be acquired “as appropriations become available for the purpose.” The 1958 Act, however, severely limited the amount that could be appropriated for purchasing the remaining privately held lands, by putting a ceiling upon future appropriations of $2,000,000 (approximately $24 per acre). Moreover, not even a fraction of the privately held lands could be purchased immediately as Congress did not appropriate any money for that purpose for some time. When anxious landowners inquired of the Department of the Interior concerning the status of their lands and the possibility of imminent condemnation, they were assured, in a series of letters between 1958 and 1962, that the Department would not begin its acquisition program until Congress appropriated the necessary funds, that the Department did not know when Congress would in fact appropriate the funds, but that in the meantime the landowners were completely free to sell, use, or improve their within-Park properties as they were able to and as they saw fit. As things developed, the Department of the Interior did not begin to purchase privately held lands with federal funds until 1966, and when it did, the $2,000,000 authorized back in 1958 was quickly exhausted. As Congress subsequently realized, the 1958 authorization had been made without the benefit of any detailed appraisals and the errors made in the estimates were compounded by “the rapid escalation of land prices” so that the $2,000,000 was insufficient for the acquisition of at least 74,000 acres of the remaining privately owned land. It was not until 1970 that Congress fully remedied its initial underestimation of the money necessary to complete its acquisition program, when it withdrew the $2,000,-000 cap and increased the authorized appropriation elevenfold to $22,000,000. Congress actually appropriated most of this sum shortly thereafter and, sometime in 1971 or 1972, the Department of the Interi- or began the process of acquiring the remaining privately held parklands, including those involved in this' case. I. THE PROCEEDINGS BELOW The 52 tracts of land involved in this appeal were among thousands of Everglades parcels destined for acquisition once Congress loosened the pursestrings. The acquisition of many tracts was accomplished through settlement negotiations, but hundreds more went to trial in the Southern District of Florida. Processing these hundreds of eminent domain cases, most of which involved parcels of land an acre or two in size, involved peculiar problems of judicial administration and, in turn, required somewhat unusual solutions. For most of the landowners, the costs of litigating their cases individually were prohibitive. Consequently, the “trial” in many cases — those in which the owner had neither retained counsel nor requested a jury trial — consisted of a Government appraiser taking the stand and reading his estimate of fair market value for a number of tracts, followed by the entry of judgment in the amount of the appraised sum for each tract on the list. Other landowners, however, would pool their resources and retain one attorney to represent their cases jointly. The District Judges, then, had the unenviable task of presiding over a process that was inherently chaotic — sending notice to hundreds of landowners, trying in summary fashion those parcels not represented by an attorney, holding pre-trial conferences and hearings for those tracts represented by a handful of attorneys, and then finally conducting full-blown compensation trials involving upwards of thirty parcels each. To achieve justice in a situation like this, where the condemned properties are distinguishable only by a docket number and a tract number, is no easy task. New if any Trial Judges — no matter how conscientious — could be expected to maintain order without the cooperation of the one other party that was an ongoing participant throughout the entire proceedings — namely, the United States Government. Unfortunately, the Government attorneys, at least in this case, did not shoulder their responsibility for facilitating justice in these unusual circumstances, but instead assumed the distinctly adversarial role more appropriate to the conventional one-on-one litigation, the cumulative result of which was that the landowners before us on appeal were not afforded the due process guaranteed them by the Fifth Amendment. What follows is an abbreviated story of three trials, which, largely because of certain inexcusable procedural irregularities during the pre-trial proceedings, must go for naught. >fi # # ift # # Notices of condemnation were sent to the owners of the various properties in this case between July 28,1975 and January 14,1976. All of the owners eventually retained Mr. William Earle, a lawyer who specializes in eminent domain litigation, to try their cases. The various individual cases were consolidated into three groups. In the first group were 4 large tracts, ranging in size from 40 to 320 acres. The second and third groups consisted of smaller properties — 29 properties averaging 1.91 acres in group 2, and 30 properties averaging 2.83 acres in group 3. Each of the groups was tried separately, before three different juries, in successive trials presided over by Senior District Judge Mehrtens during the week of May 10-14, 1976. By stipulation and with the approval of the Court, all motions, objections, proffers, and rulings applied to all three trials. The trials themselves were bitterly waged contests, object lessons that the adversary process can be carried to intolerable extremes. No participant comported himself in a manner conducive to a fair determination of the truth — in this case, just compensation. Instead, the trials were plagued with the repeated badgering of witnesses, numerous picayune objections and motions, and generally disrespectful and derisive behavior. The obstreperous conduct of the attorneys undoubtedly stemmed in large part from two crucial pre-trial rulings which the landowners perceived to place them at a serious disadvantage and therefore repeatedly attempted to circumvent or have overturned, and which the Government perceived to give it a decisive advantage which it was anxious to preserve and exploit. The first of these two rulings was that the landowners, in attempting to show the fair market value of their properties at the date of taking, could not introduce any evidence of sales of either theirs or comparable properties that had occurred within the boundaries of Everglades National Park after July 2, 1958. This ruling was designed to give effect to a principle of condemnation law that has come to be known as the “scope of the project” rule. The underlying precept is that just compensation does not include any value attributable either to a unique governmental demand (as opposed to private demand) for the property or to the fact that the Government is exercising its powers of eminent domain on behalf of the public. Thus, if condemned property was “probably within the scope” of a public project from the time the Government became committed to that project no enhancement in value attributable to the public project may be considered in awarding compensation. The second of the crucial pre-trial rulings concerned the “highest and best use” of the properties. Another principle of eminent domain law is that a landowner is not limited to showing the value of his land as presently used, but may introduced evidence of potential uses to which his property may readily and reasonably be converted, since demand for potential use affects market value. In this case, Judge Mehrtens entered a pre-trial ruling precluding the landowners from introducing any evidence that their properties were suitable for cabin sites or other construction purposes. In the rather unusual circumstances of these Everglades condemnation proceedings, these two rulings combined to place extremely restrictive limits, which Judge Mehrtens rigorously enforced, on the evidence the landowners could admit to show the fair market value of their properties. Other rulings made during trial further restricted the landowners’ presentation of their cases. The restrictive impact of some of these rulings is discussed in the following paragraphs. The Scope Of The Project Ruling On April 21, 1976, a few weeks prior to the three trials, the Government moved the Court to prohibit the landowners from making reference to any prior sales of their properties or of other lands within the Everglades National Park which took place after July 2, 1958, “on the grounds such lands were within the scope of the project after that date.” By his order of April 27, 1976, Judge Mehrtens granted the Government’s motion, ruling that the landowners “shall not offer evidence as to any sales which occurred within the boundaries of the Everglades National Park after July 2, 1958.” Despite repeated objections during the three trials, Judge Mehrtens stood by this ruling throughout. A full appreciation of the restrictiveness of this ruling requires some knowledge of Florida geography and of the peculiar characteristics of the condemned properties. As already mentioned, the 63 tracts involved in the three condemnation trials are all located in an area of the Park known as the Northwest Extension. More specifically, the properties are located on the southwest coast of Florida along a chain of marked, deep-draft intercoastal waterways just a few miles from the Gulf of Mexico. The land in this area is cut with numerous creeks, streams, and bays, and many of the landowners’ properties lie along navigable waterways with access to the Gulf of Mexico; one of the larger tracts is actually located on the Gulf. Portions of some of the properties are submerged except at low tide; other portions have an elevation ranging from several inches to about one foot above mean high tide. Much of the soil in the area is muck, especially during the wet season. The water is brackish — a mixture of fresh water flowing from inland regions and salt water coming in with the tides from the Gulf of Mexico. Because of this mixture, it is an extremely fertile area for a wide range of marine life. It is also populated by deer, wild pigs, raccoons, bobcats, wild turkeys, squirrels, and the like. As one Government witness testified, “[i]t is biologically one of the most productive areas that you will find anywhere in the world.” The characteristic that is most distinctive of this area, however, is its predominant vegetation — the mangrove tree. The mangrove is a “jungly” hardwood tree of about 20 to 30 feet in height (occasionally as high as 80 feet), with a very dense, tangled above-ground root system. It will grow even where its roots are covered by the tide for a portion of the day. In places, the mangroves are so thick that transportation, either by boat or over ground, is virtually impossible. At one time, before the development of certain areas like Miami Beach, virtually all the coastal lands of South Florida were mangrove lands. Thus, the mangrove lands roughly form a horseshoe around South Florida. To the interior are sawgrass plains and the cypress zone — areas that in many respects are just as much a wilderness with as varied an animal life as the Everglades mangrove lands, but in many other respects are quite dissimilar to coastal mangrove lands. Indeed, the landowners took the position that mangrove lands are not truly comparable to any other lands in all of Florida. Thus, as evidence of fair market value of their lands at the date of taking (which in these cases was the date of trial), they desired to introduce appraisals based on recent sales of other South Florida mangrove lands (the only truly “comparable” sales in their opinion). The Court’s “scope of the project” ruling, however, precluded them from introducing post-1958 sales of land located within Everglades National Park. Sales of “comparable” land eighteen years or older of course have only marginal probative value with respect to the fair market value of land in 1976, especially in an area which has experienced an escalating demand for recreational land in the interim. Thus, the landowners were forced to look outside the Everglades National Park for “comparable” mangrove sales. But now Florida geography presented an obstacle. To begin with, most extant mangrove lands in South Florida are encompassed by the Park (which, undoubtedly, is one reason the Park was established — to preserve the primitive state and the rich vegetation and animal life of the coastal mangrove areas of South Florida). To complicate matters, the closest privately held mangrove lands outside the Park, adjoining the northwestern edge of the Park, were owned by a large land company, and had not been sold for many years. This meant that the only recent sales of non-Park mangrove lands were isolated sales at least 10 miles to the north and west of the Park, or along the eastern edge of the Park (about 60 miles from the landowners’ properties). Judge Mehrtens, however, ruled that these isolated, recent non-Park mangrove sales were inadmissible as not sufficiently comparable, apparently because of their distance from the condemned properties and because of their proximity to more developed, urban areas. This noncomparability ruling (excluding those few recent mangrove sales outside the Park which were discovered by the landowners’ expert appraisers) coupled with the scope of the project ruling (excluding post-1958 in-Park sales) precluded the landowners from referring to any recent mangrove sales in all of Florida. In their effort to provide some admissible, nonspeculative evidence of the fair market value of their properties, the landowners were therefore forced to refer to recent sales of sawgrass lands in an area of Big Cypress 7-25 miles from their properties, The Government’s expert witness relied on sales of the same or similar saw-grass properties in making his appraisal of the fair market value of the lands, The Government’s expert admitted that recent sales within the Everglades National Park would be comparable sales, typical of the marketplace. But in his opinion the sales of sawgrass land he relied upon, located just outside the Park boundaries, were also comparable sales, since the sawgrass lands were subject to the same regulations for building and development, were flooded every year for about six months, and had similarly limited accessibility. The landowners hotly contested the comparability of the sawgrass lands to their mangrove properties, however. They pointed to the marked differences in vegetation (mangrove forests versus sawgrass plains), the differences in animal life and sporting opportunities (saltwater fishing for snook, tarpon, etc. in the coastal mangrove lands; game hunting, such as deer and duck, and limited freshwater fishing in the Big Cypress sawgrass lands), differences in location (owners’ mangrove lands were generally waterfront properties directly accessible by navigable waterways to the Gulf of Mexico, while sawgrass lands were interior marsh or swamp); differences in accessibility to specific tracts (owners’ tracts could be reached by normal power boats; access to many sawgrass tracts, if legal access was available at all, had to be by overland swamp buggy or air boat), and alleged difficulties in locating and identifying specific tracts of sawgrass land (which often were part of a vast and undifferentiated plain, whereas waterfront mangrove properties supposedly could be readily identified by their land contours). A comparison of the mangrove sales tendered by the landowners and the sawgrass sales actually introduced into evidence tends to support the testimony of the landowners and their witnesses that their coastal mangrove properties were not comparable to inland sawgrass lands. For example, the owners of the 59 small tracts involved in Trials II and III generally paid from $1,000 to $3,500 per acre for their parcels. (Many of them purchased their tracts between 1967 and 1971.) In addition, the average sale price of the few non-Park mangrove sales proffered, but excluded as noncomparable, exceeded $3,100 per acre. In contrast, the average sale price of the sawgrass sales actually introduced into evidence by the Government, and relied upon by the Government in making its appraisals of the fair market value of the landowners’ properties, was about $325 per acre. This disparity is a strong indication that the landowners’ coastal mangrove properties do indeed possess a significantly higher fair market value than do inland sawgrass properties. To be sure, the difference in value may be due, at least in part, to the location of the landowners’ properties within the Everglades Park — an element of value which, under the “scope of the project” rule, might be noncompensable. For our present purposes, however, it is sufficient to observe that the Court’s rulings — excluding post-1958 in-Park sales as well as all non-Park mangrove sales uncovered by the landowners’ expert witnesses on grounds of noncomparability — prevented the landowners from introducing any actual sales figures to rebut the Government’s argument that their properties were worth no more than inland sawgrass properties. The Highest And Best Use Ruling The Court’s second crucial ruling — on “highest and best use” — also was made pursuant to the Government’s motion of April 21,1976. In his order granting that motion, Judge Mehrtens ruled that the landowners “shall make no reference at trial to evidence that the subject properties are suitable for cabin sites or other construction purposes.” During the three trials the landowners repeatedly objected to this ruling. They conceded the validity of the underlying principle — that while a condemnee is entitled to compensation reflecting the highest and most profitable use for which his property, at the time of taking, is adaptable and needed, or is likely to be needed in the reasonably near future, he is not entitled to compensation for potential uses that are not reasonably probable either because the land is not reasonably adaptable to such a use or because there is no likely demand for that use. But they challenged this particular application of the principle, basically on two grounds. First, the landowners contended that cabins were a reasonably probable potential use, for which there was a market and a demand. To support this contention, they introduced by way of a proffer evidence that there were at least 18 cabins in the area, as well as several permanent houseboats or barges on which permanent camps had been erected. Indeed, four of the 63 tracts involved in the three trials had been improved with cabins or weekend homes. The landowners also tendered evidence that there was a demand for recreational cabins, and many of them testified that they had bought their properties with an intent to erect fishing camps or cabins on them. And although on-the-ground cabins could not be built on many of the properties, in large part because of their low elevation and muckish soil, the landowners proffered expert testimony that stilt houses and elevated boardwalks could be constructed without damaging the mangrove forest and in compliance with all governmental regulations. Second, the owners argued that the issue of highest and best use was for the jury to decide, with proper instructions of course that speculative uses are neither to be considered nor compensated. The owners contended that Judge Mehrtens’ ruling, precluding them from introducing any evidence that their properties were suitable for cabins, boardwalks, boat docks, etc., was tantamount to instructing the jury that their properties had no use whatsoever, and therefore erroneously trenched upon the province of the jury. Judge Mehrtens, however, stuck by his original ruling that use of the properties for recreational dwellings was speculative and conjectural and had not been shown to be reasonably probable. He indicated that this ruling was based in part upon the failure of the landowners to prove that elevated cabins and boardwalks were practicable, and in part upon various regulatory restrictions that legally precluded any and all construction on the landowners’ properties, whether practicable or not. Evidence had been introduced at a pre-trial hearing to the effect that coastal mangrove properties within the Northwest Extension were subject to the jurisdiction of, inter alia, the Monroe County Building and Zoning Department, the Monroe County Department of Environmental Health, and the United States Army Corps of Engineers. Although there was no indication that applicable zoning laws prohibited cabins on coastal mangrove properties, evidence was introduced at that hearing that permits for a septic tank, pit privy, or any other permanent sewage disposal facility would not be granted for properties in the area, and further that the Army Corps of Engineers would not grant permits for dredging, filling, or proposed structures for any property in the area under its jurisdiction. Apparently relying on this evidence, Judge Mehrtens disregarded the trial testimony of a landowners’ expert that permits could be obtained for stilt houses or cabins and that such structures could be built in compliance with all applicable regulations, and ruled instead that any structures, even if practicable, could not legally be built. With respect to whether the issue of highest and best use was a judge or jury question, Judge Mehrtens vacillated. His final position was that it is a jury question, and he so instructed the juries, but by excluding all evidence that the properties were suitable for buildings or other improvements, the Judge effectively decided the issue himself. Thus the consequence of his pre-trial ruling, whether correct or erroneous, was to relegate the landowners to valuing their properties as mere land, muck, and water — suitable perhaps for hunting, fishing, or communing with nature, but for no other recreational or residential uses. The Ruling On Illegal Uses As mentioned, four of the properties had already been improved with cabins or weekend homes. The owner of a 40-acre parcel included in Trial I had built a cabin with an attached porch on his property in 1958, and had further improved his property with approximately 24 feet of dock on creosote pilings. A 2-acre waterfront tract in Trial II was owned by a club of sportsmen, who regularly used the property on weekends for recreational purposes and to entertain business customers. Among the improvements on the property was a cabin which one landowner’s appraiser valued at $30,-000. Two other properties in Trial II had been improved with cabins erected on high and dry ground. The juries, however, were not permitted to hear evidence of any of these existing improvements. At trial, Judge Mehrtens made explicit what was implicit in his pretrial ruling on “highest and best use” excluding reference to “cabin sites or other construction purposes” — that the ruling applied to existing as well as potential structures. Judge Mehrtens unequivocally based this extension of his “highest and best use” ruling on the principle that landowners can not be compensated for an illegal use. He interpreted this principle to hold that before landowners can be compensated for an existing structure, they must prove that the structure was legally erected under a proper permit. The four landowners were unable to satisfy this burden of proof, and consequently their properties, along with the other 59 properties, were valued as if they were both unimproved and not reasonably suitable for any improvements. The Verdicts In the end, the juries returned just compensation awards much closer to the Government’s appraisals (as undeveloped and undevelopable mangrove land, based on purportedly comparable sales of Florida sawgrass land) than to the landowners’ valuations. The disparities among the Government’s appraisals, the landowners’ valuations, and the juries’ awards are presented by the table in footnote. To summarize the table, the landowners were awarded an average of $251/acre for land which the Government valued at an average of $207/acre, which the landowners valued at an average of $l,298/acre, and which the landowners had purchased for upwards to $8,500/acre. The Fatal Procedural Error This concludes our story of the trials themselves. We report no more because the trials, as tense and bitterly contested as they were, were doomed to futility when the Government prevailed upon Judge Mehrtens to adhere to his crucial pre-trial rulings. And the problem with those rulings was not so much substantive — although in the circumstances of this case one was erroneous and the correctness of the other is not free from doubt. Instead, the fatal flaw is that the two crucial pre-trial rulings, which (along with the trial rulings on comparable sales and illegal uses) channeled the admissible evidence of fair market value within narrow bounds indeed, were in effect entered ex parte. The unhappy story of how this came to pass is chronicled in detail in the footnote. The short of the matter is that Judge Mehrtens apparently thought that these 63 cases had been before him at an earlier pre-trial hearing in which he heard evidence and arguments concerning the two crucial issues of “scope of the project” and “highest and best use.” In reality, however, that hearing involved none of these 63 cases nor were any of the landowners or their attorney Mr. Earle present at that hearing. Judge Mehrtens’ mistake is somewhat understandable midst the welter of Everglades condemnation cases pending before him, especially since the Government, in requesting the pre-trial rulings, represented to the Court that a hearing involving these 63 cases already had been conducted on the two crucial issues. But the Court’s misplaced reliance on the Government’s misrepresentation, although understandable, cannot be sustained. To bind litigants to rulings on the basis of evidence and arguments they have had no opportunity to contest is the most elementary sort of due process violation. We therefore are compelled to vacate the 52 judgments of just compensation which have been appealed and remand those cases for another trial. ****** Our labors have just begun, however. In addition to asserting procedural error, the landowners have denominated 13 substantive or evidentiary rulings to which they assign error. The record, which contains numerous proffers of evidence the landowners would have presented the juries but for the restrictive rulings, is without question sufficiently developed for us to consider the merits of the landowners’ arguments on these points. We decline, however, to address those alleged errors which are unlikely to recur on retrial. Other contested issues will inevitably, or at least quite probably, arise again on remand. Of particular importance are the application of the “scope of the project” rule and the principle of “highest and best use” to the unusual circumstances presented by the condemnation of private lands — largely wilderness, arguably dissimilar to all surrounding lands, and strictly regulated — within the boundaries of a pre-established National Park. To ignore these issues might well be to condemn any retrials to the futility of the original trials. But before turning to their consideration, we pause to review the basic precepts and principles of just compensation law, lest we lose sight of the forest for the trees. II. BASIC PRINCIPLES The Fifth Amendment itself, specifically the Just Compensation Clause of that Amendment, contains no mention of the “scope of the project” rule or the principle of “highest and best use.” It merely provides that no “private property [shall] be taken for public use, without just compensation.” Thus, the only standard of compensation mandated by the Constitution is that it be “just,” which in turn “evokes ideas of ‘fairness’ and ‘equity,’ ” see United States v. Commodities Trading Corp., 1950, 339 U.S. 121, 124, 70 S.Ct. 547, 549, 94 L.Ed. 707. But what is just, fair, and equitable? To begin with, the Supreme Court has made clear that in the condemnation context, as in all areas of the law, justice is not measured from the jaundiced perspective of either the individual alone or the collectivity alone: “Just compensation means a compensation that would be just in regard to the public, as well as in regard to the individual * * Bauman v. Ross, 1897, 167 U.S. 548, 570, 17 S.Ct. 966, 975, 42 L.Ed. 270. Giving yet more content to the concept of just compensation, the Court has explained that the underlying principle is that the dispossessed owner “is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.” Olson v. United States, 1934, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236. But these obvious (although sometimes overlooked) precepts do not, by themselves, decide the multitudinous condemnation cases with their almost limitless range of fact complexes. Supplementing these precepts are a number of “working rules” and “practical standards” developed by the courts in their endeavor to do substantial justice in eminent domain proceedings. United States v. Cors, 1949, 337 U.S. 325, 332, 69 S.Ct. 1086, 93 L.Ed. 1392. Among these working rules and practical standards are the following. The measure of compensation is to be the value of the property at the date of taking. E. g., United States v. Miller, 1943, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336. In most cases, the “value” of the property can be “justly” determined by its monetary “market value.” United States v. Toronto, Hamilton & Buffalo Nav. Co., 1949, 338 U.S. 396, 402, 70 S.Ct. 217, 94 L.Ed. 195. “Market value” has been defined as “what it fairly may be believed that a purchaser in fair market conditions would have given,” New York v. Sage, 1915, 239 U.S. 57, 61, 36 S.Ct. 25, 60 L.Ed. 143, or “what a willing buyer would pay in cash to a willing seller,” United States v. Miller, supra, 317 U.S. at 374, 63 S.Ct. at 280. And since a hypothetical, “reasonable man” buyer will purchase land with an eye to not only its existing use but to other potential uses as well, fair market value takes into consideration “[t]he highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future * * * to the full extent that the prospect of demand for such use affects the market value while the property is privately held.” Olson v. United States, supra, 292 U.S. at 255, 54 S.Ct. at 708. Thus, “just compensation” is not limited to the value of the property as presently used, but includes any additional market value it may command because of the prospects for developing it to the “highest and best use” for which it is suitable. These rules and standards are not absolute and invariable, however. Some cases may involve peculiar circumstances in which it is impossible to determine a “market value.” There may be other cases in which strict adherence to the concept of market value would involve inclusion of elements which, because they would result in manifest injustice to the owner or the public, must be eliminated from the compensation calculus. United States v. Miller, supra, 317 U.S. at 375, 63 S.Ct. at 280; United States v. Commodities Trading Corp., supra, 339 U.S. at 123, 70 S.Ct. at 549. For cases such as these courts have fashioned and applied other rules and standards, including the “scope of the project” rule discussed in the next Part. But neither are these secondary rules and standards absolute. The only absolute standard is that provided by the Constitution — “just compensation”— and the only sure guide in a difficult condemnation case is the consideration “What compensation is ‘just’ both to [the] owner whose property is taken and to the public that must pay the bill?” Id. With this consideration foremost in mind, we turn now to the questions raised by this appeal. III. THE SCOPE OF THE PROJECT RULE IIIA. The Substance Of The Rule The “scope of the project” rule can be stated easily enough: If the condemned land was probably within the scope of the governmental project for which it is being condemned at the time the Government became committed to that project, then the owner is not entitled to any increment in value occasioned by the Government’s undertaking the project. But, as this case so aptly illustrates, it is not so easily understood or applied. It is most profitably understood as one of the secondary rules refining the concept of market value as the basic measurement of compensation so that injustice does not result from a naive or mechanical determination of market value. As it so happens, the “scope of the project” rule [hereinafter SOP rule] is primarily concerned with awards that are unjust from the perspective of the public footing the bill. As such, it shares a kinship with other secondary rules or principles that have been developed to ensure that the Government, in pursuing public benefits through the power of eminent domain, is not forced to overcompensate private propertyholders. One such principle is that special value to the taker, or value created solely by the taker’s demand for the property, is not compensable. E. g., United States v. Cors, supra, 337 U.S. at 332-34, 69 S.Ct. at 1090-1091; United States v. Weyerhauser Co., 9 Cir., 1976, 538 F.2d 1363, cert. denied, 1976, 429 U.S. 929, 97 S.Ct. 336, 50 L. Ed.2d 300; United States v. Whitehurst, 4 Cir., 1964, 337 F.2d 765, 771-72; United States v. Catlin, 7 Cir., 1953, 204 F.2d 661, 665; In re Valuation Proceedings under Regional Rail Reorganization Act, Spec. Ct. R.R.R.A., 1977, 445 F.Supp. 994, 1013-16; cf. United States v. Michoud Industrial Facilities, 5 Cir., 1963, 322 F.2d 698, 708-09, cert. denied, 1964, 377 U.S. 916, 84 S.Ct. 1180, 12 L.Ed.2d 185. “Since the owner is to receive no more than indemnity for his loss, * * [the property’s] special value to the condemnor as distinguished from others who may or may not possess the power to condemn, must be excluded as an element of market value.” United States v. Miller, supra, 317 U.S. at 375, 63 S.Ct. at 280. At least three considerations support this principle excluding from compensation “value resulting from the government’s special or extraordinary demand for the property” — value that is caused solely by the Government’s actions as taker of the condemned property. First, this value is not true “market value” as determined by what a willing buyer would pay a willing seller under “fair market conditions.” The Government has entered the “market” as a “purchaser” with a unique and pressing demand, and in so doing has distorted the market; absent the Government’s activity as “purchaser” or condemnor, there would be no market reflecting this unique demand. That element of value created solely by the Government’s activity as purchaser or condemnor is more “hold-up value” than “fair market value.” Second, to force the Government to pay, because of a special public need for property, a premium over that which the property would bring on the open market absent the Government’s demand, obviously would increase the cost of public projects and perhaps frustrate some public objectives. Third, to permit recovery of value that is not created by fair, open market conditions would be to award a few private propertyholders windfall gains solely because of public needs and exigencies. See generally United States v. Cors, supra, 337 U.S. at 332-34, 69 S.Ct. at 1090-91; Note, Valuation of Conrail Under the Fifth Amendment, 90 Harv.L.Rev. 596, 597-606 (1977). The underlying notion of the “no value attributable to Government demand” principle, then, is that the Government, when pursuing public benefits through its condemnation power, should not have to spend more for property than would á reasonable and willing private purchaser solely because it is exercising its condemnation power on behalf of the public; instead, the Government is to be equated to a private purchaser buying the property for its “highest and best” nongovernmental use in an open market. The Supreme Court has also announced another, related refinement of “market value” compensation, excluding from compensation an element of value in order to ensure that condemnation awards are just, fair, and equitable to the public as well as to the dispossessed propertyholder. In a limited number of cases, the Court has held, in effect, that the condemnee is not to be compensated for the value of benefits conferred on his property by virtue of its proximity to Government property. The leading decision announcing, and giving effect to, this principle is United States v. Fuller, 1973, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16. In Fuller, the Government condemned privately-owned grazing lands that were adjacent to Government-owned grazing lands. The owner had been granted a revocable permit to use the Government lands in conjunction with his own lands, and contended that he was entitled to the value by which his lands were enhanced because of their actual or potential use in conjunction with the permit lands. Although the Court conceded that this element of value would be considered by a potential buyer on the open market, it held that the Government need not compensate the owner for this “Government-conferred” value. In so doing, it referred to “the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain.” 409 U.S. at 492, 93 S.Ct. at 804. This “general principle,” as applied in Fuller, is distinct from the “no value attributable to Government demand” principle. In the cases applying the latter principle, the value excluded is a direct product of the Government’s actions as condemnor, and is, by definition, a value that could not be obtained from private purchasers; it is an artificial value not to be found in the private market. The value excluded in Fuller, on the other hand, could have been obtained in the private market; it was an element of real market value. As the Court conceded, a private purchaser of grazing lands would pay a premium for lands that adjoin Government grazing lands (especially when Government grazing permits are granted almost as a matter of course). Moreover, the value was not created by the Government’s demand for the condemned property and its activity as condemnor, but rather by a special relationship between the condemned property and adjoining Government property that happened to benefit the private property. Unlike the “no value attributable to Government demand” principle, the “no value of Government-conferred benefits” principle announced in Fuller is far from being a “general principle,” much less a hard and fast rule. The only cases (other than “no value attributable to Government demand” cases) cited by the Supreme Court as examples of its application are the line of Supreme Court decisions holding that compensation for fast lands taken pursuant to the Government’s navigational servitude with respect to navigable waters does not include as an element of value any benefits conferred upon the fast lands by their access to the navigable waters and potential use as portsites or hydro-electric sites. E. g., United States v. Rands, 1967, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329; United States v. Twin City Power Co., 1956, 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240. Moreover, the Fuller Court admitted that other decisions defined limits, and in effect major exceptions, to this “no Government-conferred value” principle. Nonetheless, Fuller does stand for the proposition that in some circumstances, a condemnee may not recover that element of fair market value which his property enjoys at the grace of the Government in part because of its special relationship to Government property. We have considered in some detail these two sorts of excludable values — value attributable to Government demand and (in some circumstances) value of Government-conferred benefits — because both values are relevant to the “scope of the project” rule. Furthermore, as we will see, both values arguably are at issue in the Everglades condemnation proceedings before us. The origins of the SOP rule are found in two nineteenth-century decisions of the Supreme Court: Kerr v. South Park Commissioners, 1886, 117 U.S. 379, 6 S.Ct. 801, 29 L.Ed. 924, and Shoemaker v. United States, 1893, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170. Both cases involved lands taken for an urban public park (in Chicago and the District of Columbia, respectively). In both cases there was evidence that subsequent to the legislative authorization of the park, lands in the area of the park-to-be increased appreciably in value. And in both cases, the Supreme Court approved lower court instructions that in effect informed the fact-finding body (a jury in Kerr and a commission in Shoemaker) that it was not to consider any such value attributable to the authorization of the park. The condemned properties could not be valued as parklands, for the simple reason that they had no use as parklands to their private owners. Nor could they be valued the same as neighboring tracts that were not condemned and ended up fronting upon the park; since the condemned lands were within the proposed park, they (unlike their neighbors) received no special benefits, and possessed no special value, resulting from the establishment of a park in the neighborhood. See Kerr, 117 U.S. at 385, 6 S.Ct. at 804. Finally, and in sum, the condemned properties were to be valued without “reference to * * * any supposed or speculative value given to [them] by reason of the act * * * creating the park project.” Shoemaker, 147 U.S. at 305, 13 S.Ct. at 392-393. The values the landowners unsuccessfully sought to have considered were values created solely by the Government’s undertaking the park projects for which their lands were condemned. In approving exclusion of these values, Kerr and Shoemaker can be seen as rather straightforward applications of the “no value attributable to Government demand” principle. The SOP rule, which was as yet somewhat inchoate in Kerr and Shoemaker, was given full articulation in United States v. Miller, 1943, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336. In Miller, the United States had condemned the subject lands for the relocation of railroad right-of-ways, made necessary by a Government dam-and-reservoir project, which, when completed, would inundate the old right-of-way. The project had been under consideration for a number of years; construction of it had been approved by the President in 1935; funds were appropriated for it by Congress in both 1936 and 1937; and in August 1937 Congress gave final authorization for the project. Although the need for new railroad right-of-ways had been anticipated early in the planning stages, and alternative routes had been surveyed and staked out in 1936, the actual location of the new railroad right-of-ways was not made known until the United States filed its declaration of taking in December 1938. Prior to 1937, the condemned lands at issue in Miller were largely uncleared brush lands. Sometime in 1937 they were plotted for subdivisions. By the date of taking in December 1938, they were part of a town that had been built up for business and residential purposes. The issue in Miller, as stated by the Supreme Court, was whether the owners should “have the benefit of any increment of value added to the property taken by the action of the public authority in previously condemning adjacent lands,” and, “[i]f so, were the lands in question so situate as to entitle respondents to the benefit of this increment?” 317 U.S. at 375, 63 S.Ct. at 281. To decide this question, the Court referred to the following “working rules,” which remain the definitive statement of the “scope of the project” rule: If a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased" value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value, due to the projected improvement. The question then is whether the respondents’ lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought not to gain by speculating on probable increase in value due to the Government’s activities. Id. at 376-77, 63 S.Ct. at 281. Applying this test to the facts of the case, the Court held that the owners were not entitled to any increment in value due to the Government’s project: The project, from the date of its final and definite authorization in August 1937, included the relocation of the railroad right-of-way, and one probable route was marked out over the respondents’ lands. This being'so, it was proper to tell. the jury that the respondents were entitled to no increase in value arising after August 1937 because of the likelihood of the taking of their property. If their lands were probably to be taken for public use, in order to complete the project in its entirety, any increase in value due to that fact could only arise from speculation by them, or by possible purchasers from them, as to what the Government would be compelled to pay as compensation. Id. at 377, 63 S.Ct. at 282. The two reported opinions in Miller — the Supreme Court decision and the circuit court decision which it reversed — contain strong indications that the owners had purchased and subdivided previously undeveloped land, gambling that it would increase considerably in value once the adjoining dam-and-reservoir project became a reality. And it is apparent from the Supreme Court opinion in Miller that the Court’s foremost concern was to ensure that the owners would not extract, under the compulsion of the Just Compensation Clause, any speculative profits from the Government (and the public) because of the Government’s activities as condemnor in completing the dam- and-reservoir project. Thus Miller as well is essentially yet another application of the “no value attributable to Government demand” principle. The most significant aspect of Miller, however, is its statement of the “scope of the project” rule. For in that statement the Court categorizes compensable and noncompensable values due to Government projects: if, on the one hand, the property in question can be viewed as part of the project “from the beginning,” any increment in value attributable to the project is not compensable; if, on the other hand, the property in question is taken pursuant to a subsequent decision to enlarge the project, the owner is entitled to compensation for “the value added in the meantime by the proximity of the improvement.” This categorization was reaffirmed and explained further in United States v. Reynolds, 1970, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12, the Supreme Court’s only other major SOP decision: The Court early recognized that the “market value” of property condemned can be affected, adversely or favorably, by the imminence of the very public project that makes the condemnation necessary. And it was perceived that to permit compensation to be either reduced or increased because of an alteration in market value attributable to the project itself would not lead to the “just compensation” that the Constitution requires. On the other hand, the development of a public project may also lead to enhancement in the marfcet value of neighboring land that is not covered by the project itself. And if that land is later condemned, whether for an extension of the existing project or for some other public purpose, the general rule of just compensation requires that such enhancement in value be wholly taken into account, since fair market value is generally to be determined with due consideration of all available economic uses of the property at the time of the taking. 397 U.S. at 16-17, 90 S.Ct. at 805 (emphasis added and footnotes omitted). This categorization, it should be observed, parallels the distinction developed earlier between “value attributable to Government demand” and the value of “Government-conferred benefits.” In essence, the SOP rule excludes compensation for the former but commands compensation for the latter. By holding that the Government, in condemning property x as part of project A, need not pay compensation for value attributable to project A if property x was included in the project “from the beginning,” the SOP rule ensures that the just compensation award will not reflect the Government’s special demand for property x for inclusion in public project A. But the SOP rule also provides that if project A did not initially include property x, the Government must pay compensation for any additional value property x enjoys because of its proximity to project A as originally under-taken. This value, while in a sense created by the Government, is not attributable to the fact that the Government has a unique demand for property x and has committed itself to taking property x for inclusion in project A, but rather is the value of beneficial uses for which there is a private market demand, and, as such, is a true element of fair market value. Nonetheless, Miller did not explicitly formulate the test for distinguishing between noncompensable and compensable value in terms of value attributable to the Government’s special demand and its actions as condemnor (noncompensable) and the fair market value of benefits derived from the property’s proximity to the Government project as originally undertaken (compensable). Instead, the shorthand test announced in Miller is whether “[the] lands were probably within the scope of the project from the time the Government was committed to it.” 317 U.S. at 377, 63 S.Ct. at 281; United States v. Reynolds, supra, 397 U.S. at 21, 90 S.Ct. at 807. If so, the condemnee is not entitled to enhancement attributable to the project; if not, the Government must compensate the condemnee for any such enhancement. As subsequently explained in Reynolds, [Application [of this test] to any particular set of facts requires discriminating judgment. The rule does not require a showing that the land ultimately taken was actually specified in the original plans for the project. It need only be shown that during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use. Id. In Miller itself, the “discriminating judgment” called for by the test dictated that the enhanced value be excluded from the compensation award. Two facts in particular were relied upon by the Court in reaching this conclusion: first, from the date of its final and definite authorization in August 1937, the project had included the relocation of the railroad right-of-way, and second, one alternative route for the relocation had been marked out over the owners’ lands in 1936. 317 U.S. at 377, 63 S.Ct. at 281. Thus, the owners undoubtedly had been placed on notice that the subject lands might be taken in conjunction with the dam-and-reservoir project. Subsequent cases in the lower federal courts illustrate that application of the test and categorization of compensable and noncompensable values is often a more difficult task, requiring even more discriminating judgment, than in Miller. A case in point is United States v. Crance, 8 Cir., 1965, 341 F.2d 161, cert. denied, 1965, 382 U.S. 815, 86 S.Ct. 36, 15 L.Ed.2d 63, which involved the condemnation of 35 acres of land for public recreational facilities abutting a dam-and-reservoir project. In 1958 the Government had purchased about 7 other acres from the same landowners for inundation by the reservoir itself. From its inception, however, the project had contemplated the establishment of 20-40 acre recreational areas as well, located approximately every five miles around the reservoir.' But neither a 1956 preliminary design memorandum nor a 1960 proposal of sites approved by the Chief of Engineers designated any of defendants’ land for use as one of these recreational areas. However, after a 1960 public hearing announcing the proposal and after the public response to that proposal, the Government determined that another recreational site in the area of defendants’ land was desirable. After further study, it decided to acquire 35 additional acres of defendants’ property for this recreational site. On these facts (even though defendants’ 35 acres were not among those originally designated for acquisition and the probability was slight that their property would ever be acquired under a recreational-area-every-five-miles principle), the court found that the additional acreage was within the scope of the original dam-and-reservoir project and therefore subject to condemnation without regard to enhancement. A similar case in this Circuit involving land condemned as a recreational site adjoining a reservoir project is Louisiana, Through the Sabine River Auth. v. Lindsey, 5 Cir., 1975, 524 F.2d 934, cert. denied, 1976, 426 U.S. 948, 96 S.Ct. 3166, 49 L.Ed.2d 1184. In that case we held that the owners of the condemned recreational site were not entitled to enhancement when that site had been included in 1961 in the very first preliminary map of possible recreational sites, had been submitted as a proposed site to the Federal Power Commission in 1964, and had been approved as a recreational site by the FPC in 1967 more than four months before the condemnees signed a purchase agreement to buy the to-be-condemned land from its previous owner. Although the facts in Lindsey do not present as close a question as those in Crance, we observed that the “project scope is not to be narrowly interpreted.” Id. at 942. Change the facts ever so slightly, however, and the results are jus