Midship Pipeline Company, LLC v. 2.331, 2.435, 0.458 acres, Bryan County, Oklahoma et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MIDSHIP PIPELINE COMPANY, LLC, §
§
Plaintiff, §
§
Case Number: 6:18-cv-302-RAW
vs. §
§
Judge: Ronald A. White
TRACT NO. BR-0860.000, 2.331
ACRES OF LAND, MORE OR LESS,
PERMANENT EASEMENT
(PIPELINE RIGHT OF WAY) IN
BRYAN COUNTY, OKLAHOMA, et
al.,
§
§
§
§
§
§
Defendants. §
COMMISSION REPORT, RECOMMENDATIONS, AND
DETERMINATION OF JUST COMPENSATION
Plaintiff Midship Pipeline Company, LLC (“Midship”) filed this action pursuant to the
Natural Gas Act, 15 U.S.C. §§ 717a-z to obtain an order of condemnation against properties
owned by defendants in Bryan, Carter, and Johnston Counties, Oklahoma, to acquire easements
necessary for the construction and operation of a 36-inch natural gas pipeline as authorized by
the Federal Energy Regulatory Commission (“FERC”), in the interest of public convenience and
necessity (“Pipeline”). The Court granted Midship possession of the easements sought in this
case and, pursuant to Federal Rule of Civil Procedure 71.1,appointed a Commission to “to assist
the Court in determining the compensation owed” Order and Instructions for Commission, at 2
(Doc. No. 796).
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Having carefully considered all of the evidence and arguments offered by the parties, the
Commission now unanimously RECOMMENDS the Court order Midship to pay out of the
funds deposited with the Court Clerk total just compensation for the taking of permanent
easements, use of temporary easements for 24 months, and damages to the remainder, if any, to
the Landowners, including any heirs, successors and assigns of the named defendants, and any
unknown owners of the below-named tracts, in the following amounts:
TABLE A
Tract(s) No(s). Remaining Defendant(s)
Landowner(s)
Amount of Just
Compensation
Recommended
BR-0893.000 Hazel C. Haggerty, as Personal
Representative of the estate of Don M.
Haggerty, and Irish Venture Trust,
Hazel C. Haggerty Trustee, or a
Successor Trustee
$26,500.00
BR-0894.000 Hazel C. Haggerty, as Personal
Representative of the estate of Don M.
Haggerty, and Irish Venture Trust,
Hazel C. Haggerty Trustee, or a
Successor Trustee
$500.00
CR-0473.010 The executor, executrix and, or
administrator of Estate of Margaret A.
Taylor, deceased, and all heirs and, or
legatees, devisees, trustees, creditors
and assigns of Estate of Margaret A.
Taylor, deceased, et al
$500.00
CR-0473.020 Shirley A. Jones, et al $1,277.00
CR-0473.000 Gene Davis, et al $1,444.72
CR-0472.000 The executrix and, or administrator of
the Estate of W. D. Austin, deceased,
and all heirs and, or legatees,
devisees, trustees, creditors and
assigns of W. D. Austin, deceased, et
al
$4,218.48
CR-0480.010 Virginia Johnson, whether alive or
deceased, and, if deceased, the
executor, executrix and, or
$813.00
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administrator of the Estate of Virginia
Johnson, deceased, and all heirs and,
or legatees, devisees, trustees,
creditors and assigns of Virginia
Johnson, deceased
CR-0482.000 Seretta Joyce Gaines, et al $1,673.00
CR-0483.000 Rosie Petties, whether alive or
deceased, and, if deceased, the
executor, executrix and, or
administrator of the Estate of Rosie
Petties, deceased, and all heirs and
legatees, devisees, trustees, creditors
and assigns of Rosie Petties,
deceased, or her known or unknown
heirs, executors, administrators,
legatees, devisees, trustees, creditors,
and assigns, et al
$813.00
CR-0517.010 The executor, executrix and, or
administrator of the Estate of Kate
Rogene Lawrence Staggs, deceased,
and all heirs and legatees, devisees,
trustees, creditors and assigns of Kate
Rogene Lawrence Staggs, deceased,
et al
$3,006.00
CR-0711.000 The executor, executrix and, or
administrator of the Estate of Mamie
Hutchins, decease, and all heirs and,
or legatees, devisees, trustees,
creditors and assigns of Mamie
Hutchins, deceased
$500.00
CR-0484.000 Lule H. Pettus, a/k/a Lula H. Pettus,
whether alive or deceased, and, if
deceased, the executor, executrix
and, or administrator of the Estate of
Lule H. Pettus a/k/a Lula H. Pettus,
deceased, and all heirs and, or
legatees, devisees, trustees, creditors
and assigns of Lule H. Pettus, a/k/a
Lula H. Pettus, deceased, et al
$500.00
CR-0484.010 The executor, executrix and, or
administrator of the Estate of Janet
McAfee Ayres, deceased, and all heirs
and, or legatees, devisees, trustees,
creditors and assigns of Janet McAfee
Ayres, deceased
$500.00
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CR-0484.020 The executor, executrix and, or
administrator of the Estate of Anna
Mae Cato, nee Pettus, deceased,
and all heirs and, or legatees,
devisees, trustees, creditors and
assigns of Anna Mae Cato, nee Pettus,
deceased, et al
$47.00
CR-0485.000 The executor, executrix and, or
administrator of the Estate of
Lawrence Pettus, deceased, and
all heirs and, or legatees, devisees,
trustees, creditors and assigns of
Lawrence Pettus, deceased, et al
$4.00
CR-0486.020 The executrix and, or administrator of
the Estate of Devola Langetta Pennon,
deceased, and all heirs and, or
legatees, devisees, trustees, creditors
and assigns of Devola Langetta
Pennon, deceased, et al
$46.00
CR-0494.000 Rosie Breath, whether alive or
deceased, and, if deceased, the
executor, executrix and, or
administrator of the Estate of Rosie
Breath, deceased, and all heirs and, or
legatees, devisees, trustees, creditors
and assigns of Rosie Breath,
deceased, et al
$900.00
CR-0497.000 The Estate of Charlene Breath, the
executor, or executrix or
administrator of the Estate of
Charlene Breath, deceased, and all
heirs and, or legatees, devisees,
trustees, creditors and assigns of
Charlene Breath, et al
$1,104.00
CR-0499.000 The Unknown Heirs of Clara R.
Pettis, deceased, The Unknown Heirs
of Buel Pettus, Sr., deceased, et al
$3,943.00
CR-0501.000 J. T. Phillips, whether alive or
deceased, and, if deceased, the
executor, executrix and, or
administrator of the Estate of J. T.
Phillips, deceased, and all heirs and,
or legatees, devisees, trustees,
creditors and assigns of J. T. Phillips,
deceased
$454.00
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CR-0502.000 and CR-
0503.000
Gerlene Miller as Personal
Representative of the estates of Isaak
Franklin and Annie B. Franklin
$4,762.00
CR-0693.000 The executor, executrix and, or
administrator of the Estate of Fred O.
Lofton, Sr., deceased, and all heirs
and, or legatees, devisees, trustees,
creditors and assigns of Fred O.
Lofton, Sr., deceased, et al
$7,550.00
CR-0700.000 The executor, executrix and, or
administrator of the Estate of Fred
Lofton, Jr., deceased, and all heirs
and, or legatees, devisees, trustees,
creditors and assigns of Fred Lofton,
Jr., deceased, et al
$3,300.00
CR-0626.000 Larry D. Smith and Barbara J. Smith $7,250.00
CR-0627.000, CR-
0628.000 and CR-
0629.000
Casey B. Smith and Kristy J. Smith $11,413.00
CR-0636.000 H&H 1313, Inc. $1,240.00
CR-0701.000 Denise K. Davis (being one and the
same person as Denise H. Davis), as
Special Administrator of the Estate of
Warren H. Herriott, deceased, and all
heirs and, or legatees, devisees,
trustees, creditors and assigns of
Warren H. Herriott, deceased; Denise
K. Davis (being one and the same
person as Denise H. Davis), as Special
Administrator of the Estate of
Sammie J. Herriott, deceased, and all
heirs and, or legatees, devisees,
trustees, creditors and assigns of
Sammie J. Herriott, deceased
$3,500.00
CR-0703.000 and CR-
0709.000
Denise K. Davis (being one and the
same person as Denise H. Davis), as
Special Administrator of the Estate of
Warren H. Herriott, deceased, and all
heirs and, or legatees, devisees,
trustees, creditors and assigns of
Warren H. Herriott, deceased; Denise
K. Davis (being one and the same
person as Denise H. Davis), as Special
Administrator of the Estate of
$13,000.00
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Sammie J. Herriott, deceased, and all
heirs and, or legatees, devisees,
trustees, creditors and assigns of
Sammie J. Herriott, deceased
CR-0701.010 Lois J. Lofton Revocable Trust dated
August 1, 1997, Lois J. Lofton,
Trustee; Brenda J. Lofton
$317.00
CR-0704.000 Estate of Levi Birt, Jr., deceased, and
all heirs and, or legatees, devisees,
trustees, creditors and assigns of Levi
Birt, Jr., deceased, et al
$2,318.00
BR-0860.000 Larry Hughes and Jerry Hughes $6,285.00
BR-0903.000, BR-
0904.000 and BR-
0905.000
Misty Hall Murphree, et al $12,700.00
BR-0907.000 and BR-
0909.000
Billy Miller $16,143.00
BR-0925.000 The estate of Donald Andrew Morris,
the executor, or executrix or
administrator of the Estate of Donald
Andrew Morris, deceased, and all
heirs and, or legatees, devisees,
trustees, creditors and assigns of
Donald Andrew Morris
$4,625.00
BR-0994.000, BR-
0995.000 and BR-
0996.000
Henderson G. Anderson and Sherron
Katherine Anderson, Co-Trustees of
the Anderson Family Revocable Trust
under written agreement dated
January 21, 2009
$6,100.00
BR-1000.000 and BR-
1001.000
Nolen G. Grounds and Jackie M.
Grounds; The executor, executrix
and, or administrator of the Estate of
Paul Akins, deceased, and all heirs
and, or legatees, devisees, trustees,
creditors and assigns of Paul Akins,
deceased; the executor, executrix and,
or administrator of the Estate of
Clifford Akins, deceased, and all heirs
and, or legatees, devisees, trustees,
creditors and assigns of Clifford
Akins, deceased
$2,760.00
BR-1002.000 The William T. Cooley and Frances
L. Cooley Survivors Trust, Frances L.
Cooley Trustee, et al
$9,335.00
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JO-0753.000 and JO-
0754.00
Raymond A. Hulsey; Ranada D.
Hulsey
$2,865.00
JO-0758.000 Robert Eugene Harris $2,384.00
JO-0819.000 Ralph D. Ragan $2,448.00
BR-0991.000 and BR-
0993.000
Wayne Caldwell and Donna Caldwell $1,000.00
The Commission’s unanimous recommendations are based on the following.
Introduction and Legal Standards.
This case is a condemnation action brought by Midship to acquire permanent and temporary
easements to install, construct, operate and maintain a natural gas pipeline across the defendant
landowners’ properties. Midship’s right to appropriate easements across the properties to be used
to construct and operate the pipeline is based upon its receipt of the Certificate of Public
Convenience and Necessity (“Certificate”) from FERC, pursuant to Section 7 of the Natural Gas
Act.
The defendants are the properties crossed by the Pipeline and owners of interests in them,
who have not reached agreement with Midship as to the amount of just compensation for the
easements sought by Midship.1 The Commission heard testimony and considered documentary
and other evidence and arguments presented and introduced during hearings on September 6-9,
2022, to determine just compensation due to the unsettled landowners.
For purposes of determining just compensation, an easement is a nonpossessory right to
enter and use land in the possession of another, and it obligates the possessor not to interfere with
the uses authorized by the easement grant for the purpose of a natural gas pipeline approved by
1 The commission granted in part Midship’s Motion for Summary Judgment awarding third-parties
claiming interest in the properties sub judice $0.00 in compensation. See Doc. No. 870.
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FERC. An easement does not transfer ownership of the land, it only confers the right to use the
land. The owner still may use the area of the easement for all purposes consistent with the
easement. Midship’s easement rights are described in paragraphs 26-47 of Midship’s Verified
Complaint, as amended. The easements are further described and depicted in the certified plats
attached to Midship’s Complaint and exhibits thereto, as amended, and in the Notices of
Commencement of Condemnation Action and exhibits thereto, as amended. See Order and
Instructions for Commission, Doc. 796 at 12-13. Generally in this case, the permanent pipeline
easements, inside of which the pipeline is constructed, are fifty feet (50’) in width (“Permanent
Easement(s)”). On a few tracts, Midship also condemned permanent access road easements, as
depicted on the Exhibit A to Verified Complaint for Condemnation, as amended.
Midship’s Permanent Easements, except for surface sites, are non-exclusive and all are
limited in use to the rights expressly provided within Midship’s FERC Certificate and set forth in
Midship’s Verified Complaint for Condemnation, as amended. Defendant Landowners cannot
build structures within the Permanent Easement or impound water within the Permanent Easement,
but the Landowners are otherwise permitted to use the Permanent Easements for “for all purposes
which do not destroy or interfere with Midship’s permitted uses of same * * * including, without
limitation, agricultural, open space, setback, density, street, utility and roadway purposes.”
Complaint at ¶35 (Doc. No. 2).
Midship also used temporary workspace easements, additional temporary workspace
easements and temporary access road easements for construction of the Facilities (collectively,
temporary workspace, additional temporary workspace easements and temporary access road
easements are referred hereinafter as “Temporary Easements”). Temporary Easements have been
used for construction and remediation only and will not be used once construction and
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remediation is complete. The exact acreages of the Permanent and Temporary Easements and
their locations are set forth on the plats in the exhibits filed by Midship and are not in dispute. The
two-year period for which the Temporary Easements have been condemned has now expired, and
the Temporary Easements have reverted back to the landowners.2
Rule 71.1 of the Federal Rules of Civil Procedure is very clear that the Commission “is to
be confined to the performance of a single narrow but important function – the determination of a
compensation award within ground rules established by the trial judge.” United States v. Reynolds,
397 U.S. 14 (1970). The Court’s Instructions to the Commission make clear that just compensation
is comprised of: (1) the fair market value of the easements on each property in question on January
3, 2019 (the date of the taking), plus (2) any injury to the property left remaining after the taking.
Doc. 796 at 13-14. Any decrease in fair market value to the property or remainder is measured by
the difference between the market value of the entire holding immediately before the take and
the remaining market value immediately thereafter due to imposition of the easements. Id.; see
also Horne v. Dep’tof Agriculture, 135 S. Ct. 2419, 2423 (2015); N. Natural Gas Co. v. L.D.
Drilling, 862 F.3.d 1221, 1225 (10th Cir. 2017) (valuation is determined from the date of taking
for purposes of valuing the relevant property rights).
Midship does not dispute that it is obligated to pay just compensation for the easements
taken, as well as for the damage to the remainder, if any. The amounts recommended as awards of
just compensation are in satisfaction of all claims of damage asserted or which could have been
asserted by all the defendants with regard to specific tracts in this matter, caused by the imposition
of the easements by Midship on January 3, 2019. The amounts do not include any separate damage
2 On some tracts, landowners may have granted Midship access to Temporary Easements beyond
two-year period under seprate agreements for remediation work.
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occasioned by negligent construction, if any, of the Pipeline or Facilities (as those terms are
defined in Midship’s complaint, as amended), or any damage occasioned by failure, if any, of
Midship to follow or implement any required remediation plan with respect to the properties which
are the subject of this report. The Commission appreciates that any such damages must be the
subject of separate proceedings, and it expresses no view regarding claims, if any, of negligent
construction or failure to comply with the FERC remediation requirements.
Discussion and Determinations.
Midship provided evidence in the form of an expert witness’s testimony and in the form
of documents, plats, and drawings offered and admitted by the Commission. Midship’s expert
witness Mr. Walker Kelly (“Kelly”), an Oklahoma-licensed real estate appraiser, testified as to
his educational and professional background, requirements to hold a real estate appraiser license
in Oklahoma, and his compliance with those requirements as a license holder at all the times
relevant to these proceedings. The Commission found Mr. Kelly to be qualified to testify as an
expert witness on the issues of appraising real estate and just compensation for the taking in this
case.
Mr. Kelly testified regarding the appraisals of each property subject to this Report,
methodology of his appraisals, in all of which he appraised the properties and just compensation
for the taking as of January 3, 2019, compliance in his appraisals with the Uniform Standards
of Professional Appraisal Practice, as well as regarding the documents, materials, literature that
informed his conclusions about the value of the properties at issue, damages, if any, to the
remainder of the properties caused by the imposition of the Midship’s easements, and total just
compensation for the taking of the easements.
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The documents reviewed by the expert, and offered as exhibits and admitted without
objection as evidence by the Commission include (i) the terms of the easements taken as
described in the condemnation complaint in this matter, (ii) plats of the easements condemned
across each of the properties, (iv) appraisals of each of the properties, including the market
values of the parts taken and damages, if any, to the remainders of the properties due to
imposition of the easements sought as of the date of the taking on January 3, 2019, (iv) the
expert’s paired sales study, (v) other studies as to effects of pipelines on property values by
INGAA Foundation, Donald Palmer, Julia Hansen, et al, Barry Diskin, et al, and (vi) FERC’s
conclusion in Midship’s Final Environmental Impact Statement as to a pipeline’s effect, if any,
on land values.
The Commission outlines below the evidence presented as to the fair market value of the
permanent and temporary easements on each property in question on January 3, 2019, plus
injury, if any, to the property left remaining after the taking on January 3, 2019, on each property
below. Federal law allows evidence of the highest and best use of the land to be considered in
establishing the market value of the land at the date of taking. See Olson v. United States, 292
U.S. 246, 255 (1934). The existing use of the land at the time of the taking is presumed to be
the highest and best use. U.S. v. L.E. Cooke Co., Inc., 991 F.2d 336, 341 (6h Cir. 1993). Mr.
Kelly testified that he used a well-established four-prong test -- legally permissible, physically
possible, financially feasible and capable of producing the highest net return -- to determine the
highest and best use for each property. The Commission found that the use of this method was
proper.
Mr. Kelly further testified that out of three traditional real estate valuation methods he
used the sales comparisons approach, because the cost and income, and capitalization
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approaches were not applicable in this situation. Having performed a highest and best use
analysis of the subject properties before taking, he developed indications of value of the
properties using comparable land sales. Mr. Kelly analyzed Whole Properties, the Parts
Acquired and the value of the Remainders Before and After the acquisition. Having considered
the highest and best use of the Remainder After the acquisition, Mr. Kelly determined the values
of the parts taken and damages to the remainder, if any, on the properties at issue resulting from
Midship’s taking on January 3, 2019. The Commission found and hereby reaffirms that the use
of this method was proper. Details of Mr. Mr. Kelly’s analysis related to specific properties are
outlined below.
Mr. Kelly testified that, with respect to the permanent easement, surface site, and
permanent access road easements, only a portion of the total bundle of ownership rights was
acquired, because the property owner still retained the ownership and certain use of the areas in
question. Based upon the rights being acquired and the physical use of the easements, the
appraiser typically estimated the value taken for the pipeline easement at 75% of the fee value;
for the surface site - 99% of the fee value, while for the access road - 95% of the fee value.
Regarding the use of the Temporary Easements on all tracts, Mr. Kelly testified that he
used a land rental value of 10% per annum of the fee simple value of the lands within the
Temporary Easements to determine just compensation for use of temporary easements for a
period of two years. The Commission found and reaffirms now that the methodology used by
Mr. Kelly to value just compensation for the taking of permanent and temporary easements is
sound. Expert’s testimony as to methodology of the appraisals, his paired sales studies, and
exhibits 1, 5, 6, 8, 9, 10, 11, and 12, which were introduced and admitted during his testimony
with regard to Tracts No. BR-0893.000 and BR-0894.000, and reintroduced during his
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testimony in hearings on Tract CR-0484.000, were reincorporated into Mr. Kelly’s testimony
and readmitted for every other tract for which the hearings were held in this case during
September 6-9, 2022.
The Commission credited Mr. Kelly’s testimony that he did not value the crops
separately, but that his concluded values of the parts taken included all trees and crops thereon,
and that their concluded values of the temporary easements included all trees and crops thereon
during his two-year valuation period.
The above testimony applies to all the tracts subject of this Report, unless otherwise
noted regarding a specific property. The Commission further finds regarding specific tracts, and
now recommends as follows:
Tract BR-0893.000
Named Defendants-landowners: Hazel C. Haggerty, as Personal Representative of the
Estate of Don M. Haggerty, and Irish Venture Trust, Hazel C. Haggerty Trustee, or a
Successor Trustee. Attorney Joe Bocock represents the owners of the property at issue in this
hearing. Attorney Bocock expressed his dissatisfaction that a jury trial was not allowed in this
case and that the process herein has been reduced to something akin to an administrative
proceeding.
Without objections tract-specific exhibits were admitted in addition to the exhibits
common to all the tracts. Mr. Kelly testified that he observed this property from the public
roadway. The total size of the property is 546.1 acres, irregular-shaped, used mostly as
pastureland. The permanent pipeline easement is approximately 5,734.42-foot long, 50-foot
wide and comprises about 6.582 acres. Temporary Easements on this property comprise 6.675
acres. Mr. Kelly testified that using a four-prong highest and best use test of legally permissible,
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physically possible, financially feasible and maximally productive, he concluded that the highest
and best use for the property was for agricultural and recreational use in both the “before” and
“after” the taking scenarios. Utilizing the sales comparison approach, and having made
qualitative adjustments to his six comparable sales, Mr. Kelly concluded that the indicated
market value per acre was $2,000, with the value of the whole property before taking being $
1,092,200. Mr. Kelly testified regarding the weight he afforded various comparable sales in
arriving to that valuation. He further testified that he did not automatically assign 8-10%
increases based just on the year of comparable sale, but also considered other factors regarding
each sale.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $9,873.00. Using a two-step analysis, Mr.
Kelly determined the value of the remainder before the acquisition to be $1,082,327.00. Mr.
Kelly concluded that the total just compensation for the taking of the permanent easement and
use of the temporary workspace for 24 months was $12,543.00. Mr. Kelly further testified that
he assigned partial damages of 75% totaling $1,910.00 to 3.82 acres of the remainder between
the existing pipeline and Midship’s permanent easement based on the perceived more difficult
use of those small areas because of irregular shapes. Mr. Kelly concluded the value of the
remainder to be $1,074,687.00 after the taking on January 3, 2019. In response to questions on
cross-examination, Mr. Kelly testified that he did not do comparison of sales based on the size of
the permanent easement.
Considering compensation for the easements taken and partial damages to the
remainder, Mr. Kelly concluded that total just compensation for the taking of the permanent
easement and use of temporary workspace for 24 months was $20,183.00. He further testified
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that he deemed his valuation appropriate and fair, but he would understand if others may have
slightly higher opinion of value. No closing statements were offered by the parties.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract BR-0893.000 to be persuasive and after making adjustments for
normal or typical yearly increases in market value per acre per year recommends an award of
$26,500.00 as the total just compensation for the taking of said easement, use of the temporary
workspace for twenty-four months, and partial damage to the remaining property.
Tract No. BR-0894.000
Named Defendants-landowners: Irish Venture Trust, Hazel C. Haggerty Trustee, or
a Successor Trustee. Attorney Joe Bocock represents the owners of the property at issue in this
hearing. Attorney Bocock expressed his dissatisfaction that a jury trial was not allowed in this
case and that the process herein has been reduced to something akin to an administrative
proceeding.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly testified that he physically observed this property from the
public roadway during his two visits to the property. The property is currently used mostly as
a pastureland. The total size of the property is 86.72 acres, the permanent pipeline easement is
approximately 40.55-foot long, 50-foot wide and comprises about 0.047 acres; Temporary
Easement on this property comprises 0.047 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Utilizing the sales comparison approach and
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having made qualitative adjustments to his six comparable sales ranging in value from $2,320
to $3,400 per acre, Mr. Kelly concluded that the indicated market value per acre was $2,400.00,
with the value of the whole property before taking being $208,128.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $85.00. Using a 10% rental value, Mr.
Kelly concluded that just compensation for use of temporary workspace for two years was $23.00.
Using a two-step analysis, with the value of the remainder before the acquisition being
$208,043.00 and having found no damages to the remainder Mr. Kelly concluded the value of
the remainder to be $208,043.00 after the taking on January 3, 2019. Because he did not find any
damages to the remainder, Mr. Kelly concluded that total just compensation for the taking of the
permanent easement and use of temporary workspace for 24 months with no diminution amount
due with respect to the remaining property was $108.00. Closing statements were declined.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract BR-0894.000 to be persuasive and after making adjustments for
normal or typical yearly increases in market value per acre per year recommends an award of
$500.00 as the total just compensation for the taking of said easement, use of temporary workspace
for twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No._CR-0473.010
Named Defendants-landowners: The executor, executrix and, or administrator of
Estate of Margaret A. Taylor, deceased, and all heirs and legatees, devisees, trustees, creditors
and assigns of Estate of Margaret A. Taylor, deceased, et al. Without objections, tract-
specific exhibits were admitted in addition to the exhibits common to all tracts. Mr. Kelly’s
testimony regarding his methodology of appraisal and materials used to appraise the properties
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at issue in this case given during the hearings on tracts BR-0893.000 and BR-0894.000 was
incorporated by reference. Mr. Kelly further testified that he observed this property from the
public roadway. The property is currently vacant. It is in the floodplain. The total size of the
property is 9.7 acres, the permanent pipeline easement is approximately 250.46-foot long, 50-
foot wide and comprises about 0.287 acres; Temporary Easements on this property comprise
0.356 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. He did consider a rural residential use as well, but
the floodplain factor was not conducive to make that conclusion. Mr. Kelly further testified that
he could not agree that $2,700 per acre would be a correct value based on the property’s location
in the floodplain.
Utilizing the sales comparison approach and having made qualitative adjustments to his
six comparable sales ranging in value from $1,400 to $2,778 per acre, Mr. Kelly concluded that
the indicated market value per acre was $1,600, with the value of the whole property before
taking being $15,520.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $345.00. Using a two-step analysis, with
the value of the remainder before the acquisition being $15,175 and having found no damages to
the remainder Mr. Kelly concluded the value of the remainder to be $15,175 after the taking on
January 3, 2019. Because he did not find any damages to the remainder, Mr. Kelly concluded
that total just compensation for the taking of the permanent easement and use of temporary work
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space for 24 months with no diminution amount due with respect to the remaining property was
$459.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0473.010 to be persuasive and after making adjustments for normal
or typical yearly increases in market value per acre per year recommends an award of $500.00 as
the total just compensation for the taking of said easement, use of temporary workspace for twenty-
four months, with no diminution amount due with respect to the remaining property.
Tract No._ CR-0473.020
Named Defendants-landowners: The Estate of Cecil Jones, Shirley A. Jones,
Kimberly D. Burks, Houston O. Jones, Gerald W. Jones, Quincy Jones, Shelia Y. Jones, Cleta
Jones, et al.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000 and BR-0894.000 was incorporated by reference. The property is currently
unimproved. The total size of the property is 9.4 acres, the permanent pipeline easement is
approximately 652.64-foot long, 50-foot wide and comprises about 0.749 acres; Temporary
Easements on this property comprise 0.883 acres. This property is immediately south of the
previously adjudicated tract, and also is 100% in the floodplain. The Commission credited Mr.
Kelly’s testimony that, using a four-prong highest and best use test of legally permissible,
physically possible, financially feasible and maximally productive, he concluded that the highest
and best use for the property was for agricultural and recreational use in both the “before” and
“after” the taking scenarios.
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Utilizing the sales comparison approach, and having made qualitative adjustments to his
six comparable sales ranging in value from $1,400 to $2,778 per acre, Mr. Kelly concluded that
the indicated market value per acre was $1,600.00, with the value of the whole property before
taking being $15,040. Based on the indicated value, the rights being acquired and the size of
the easements, Mr. Kelly valued the permanent pipeline easement at $899.00, and the use of
temporary workspace for two years at $283.00.
Using a two-step analysis, with the value of the remainder before the acquisition being
$14,141.00 and having found no damages to the remainder Mr. Kelly concluded the value of
the remainder to be $14,141.00 after the taking on January 3, 2019. Mr. Kelly, responding to
the commissioners’ questions testified that he did not give consider a portion of the tract to be
“orphaned” and constituting diminution to the remainder because of that portion being 100%
flood-prone and because that portion still retained road frontage.
Because he did not find any damages to the remainder, Mr. Kelly concluded that total
just compensation for the taking of the permanent easement and use of temporary work space for
24 months with no diminution amount due with respect to the remaining property was $1,182.00.
The Commission finds the evidence presented with regard to just compensation for the taking of
the easement on Tract CR-0473.020 to be persuasive and after making adjustments for normal or
typical yearly increases in market value per acre per year recommends an award of $1,277.00 as
the total just compensation for the taking of said easement, use of temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No._CR-0473.000
Named Defendants-landowners: the Estate of Oscar Davis, the Estate of Severn Davis,
et al.
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Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
BR-0893.000 and BR-0894.000 was incorporated by reference. The total size of the property
is 141 acres, the permanent pipeline easement is approximately 711.37-foot long, 50-foot wide
and comprises about 0.817 acres; Temporary Easements on this property comprise 0.829 acres.
The property does not have an extensive road frontage. Half of the property is in pastureland,
and the other half is wooded acreage, with about 10% of the property lying in the floodplain. A
few oil or gas wells, along with the related lease roads, are encumbering the property.
The Commission agreed with Mr. Kelly’s conclusion that the highest and best use for
the property was for agricultural and recreational use in both the “before” and “after” the taking
scenarios. The Commission further credited his testimony that utilizing the sales comparison
approach and having made qualitative adjustments to his six comparable sales ranging in value
from $1,395.00 to $2,500.00 per acre, Mr. Kelly concluded that the indicated market value per
acre was $1,700.00, with the value of the whole property before taking being $239,700.
Responding to the Commission’s questions Mr. Kelly testified that his higher valuation
as compared to the adjacent tracts considered in the previous hearings is due to the size of this
property, which enhances it with more utility. He further testified that his highest comparable
sale was a part of an assemblage, so it included a premium paid on top of the listing price of
$1750 per acre. Some of the higher priced sales in his comparable sales were for smaller
properties, which usually bring a higher per acre value. He further testified that, in this particular
area, the market did not show significant appreciation in value with time. Based on the indicated
value, the rights being acquired and the size of the easements, Mr. Kelly valued the permanent
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pipeline easement at $1,042.00, and the use of temporary workspace for two years, based on
10% rental value, at $282.00.
Using a two-step analysis, with the value of the remainder before the acquisition being
$238,658.00 and having found no damages to the remainder, Mr. Kelly concluded the value of
the remainder to be $238,658.00 after the taking on January 3, 2019. Because he did not find
any damages to the remainder, Mr. Kelly concluded that the total just compensation for the
taking of the permanent easement and use of temporary workspace for 24 months with no
diminution amount due with respect to the remaining property was $1,324.00. In response to
the Commission’s questions, Mr. Kelly testified that, if he were to use a $1,855 an acre price,
the compensation amount would be $1,444.72, and that would be on the higher end of the scale
for this property.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract CR-0473.000 to be persuasive and recommends an award of
$1,444.72 as the total just compensation for the taking of said easement, use of temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
Tract No._CR-0472.000
Named Defendants-landowners: the Estate of W. D. Austin, the Estate of Bernice
Curlie Powell, et al.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000 and BR-0894.000 was incorporated by reference.
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Mr. Kelly further testified that he observed this property from the public roadway. The
property consists of about 40% improved pastureland and 60% woodland; it is bisected by a
creek, with about 85% of the property being in the 100-year floodplain. It is encumbered by an
existing pipeline. The total size of the property is 156.96 acres, the permanent pipeline easement
is approximately 2,015.24-foot long, 50-foot wide and comprises about 2.313 acres; Temporary
Easements on this property comprise 2.486 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Using the sales comparison approach and having
made qualitative adjustments to his six comparable sales ranging in value from $1,395.00 to
$2,500.00 per acre, Mr. Kelly concluded that the indicated market value per acre was $1,750.00,
with the value of the whole property before taking being $274,680.00.
Responding to the commissioners’ questions, Mr. Kelly testified that he considered that
there is a mixture of pastureland and wooded area, his comparable sales reflect that. He did add
about 20% premium to his Sale 1 to reflect the fact of a creek frontage.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $3,036.00, and the use of temporary
workspace for two years at $870.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $271,644.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $271,644.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that total just
compensation for the taking of the permanent easement and use of temporary work space for 24
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months with no diminution amount due with respect to the remaining property was $3,906.00.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract CR-0472.000 to be persuasive and after making adjustments for
normal or typical yearly increases in market value per acre per year recommends an award of
$4,218.48 as the total just compensation for the taking of said easement, use of temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
Tract No._ CR-0480.010
Named Defendants-landowners: the Estate of Virginia Johnson.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
BR-0893.000 and BR-0894.000 was incorporated by reference. Mr. Kelly further testified that
he observed this property from the public roadway. The property is currently vacant. The total
size of the property is 8 acres, it has a stock tank in the center, and is encumbered with a road
easement on one side of the property.
The permanent pipeline easement is approximately 352.57-foot long, 50-foot wide and
comprises about 0.405 acres. Temporary Easements, including a temporary access road, on this
property comprise 0.737 acres. Temporary access road was placed on top of the existing
Redwood Road.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
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and “after” the taking scenarios. Utilizing the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $1,400.00 to $2,778.00
per acre, Mr. Kelly concluded that the indicated market value per acre was $1,800.00, with the
value of the whole property before taking being $14,400.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $547.00, and the use of temporary
workspace for two years at $266.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $13,853.00. Mr. Kelly further testified that there was a mistake in
his report, and that he did not find damages to the remainder on this property, and inclusion of
that line was a clerical mistake. He opined that the value of the remainder remained $13,853.00
after the taking on January 3, 2019. Because he did not find any damages to the remainder, Mr.
Kelly concluded that total just compensation for the taking of the permanent easement and use of
temporary work space for 24 months with no diminution amount due with respect to the
remaining property was $813.00.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract CR-0480.010 to be persuasive and recommends an award of
$813.00 as the total just compensation for the taking of said easement, use of temporary workspace
for twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No. CR-0482.000
Named Defendants-landowners: Seretta Joyce Gaines, Kenitra Rose Williams,
Stewart Murray Gaines, II, Satchel Maurice Gaines.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
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materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000 and BR-0894.000 was incorporated by reference.
Mr. Kelly further testified that he observed this property from the public roadway. The
total size of the property is 7.6 acres, the permanent pipeline easement is approximately 387.98-
foot long, 50-foot wide and comprises about 0.445 acres. Temporary Easements, including a
temporary access road, on this property comprise 0.751 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Using the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $1,400.00 to $2,778.00
per acre, Mr. Kelly concluded that the indicated market value per acre was $1,700.00, with the
value of the whole property before taking being $12,920.00. Mr. Kelly further testified that his
indicated value is slightly lower than on the previous tract because this property does not contain
frontage along a county-maintained road. Based on the indicated value, the rights being
acquired and the size of the easements, Mr. Kelly valued the permanent pipeline easement at
$568.00, and the use of temporary workspace for two years at $258.00.
Using a two-step analysis, with the value of the remainder before the acquisition being
$12,352.00 and having found no damages to the remainder, Mr. Kelly concluded the value of the
remainder to be $12,352.00 after the taking on January 3, 2019. Because he did not find any
damages to the remainder, Mr. Kelly concluded that the total just compensation for the taking of
the permanent easement and use of temporary workspace for 24 months with no diminution
amount due with respect to the remaining property was $823.00.
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Responding to the commissioners’ questions Mr. Kelly testified that he did not apply
any damage to the area northeast of the pipeline because there was still a substantial amount of
area between the access road and the pipeline easement available for regular use. Mr. Kelly
testified that he could understand if someone considered 0.5 acres as orphaned, although the area
is not fenced and the highest and best use of the area has not changed, and nothing would prevent
the owners from using that area as before. At the indicated value of $1,700/acre the value of 0.5
acres would be $850.00, with the total compensation of $1,673.00
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract CR-0482.000 to be persuasive and recommends an award of
$1,673.00 as the total just compensation for the taking of said easement, use of temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
Tract No._CR-0483.000
Named Defendants-landowners: the Estate of Rosie Petties, the Estate of Henryetta
Woods, nee Pettus, et al.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000 and BR-0894.000 was incorporated by reference. Mr. Kelly further testified
that he observed this property from the public roadway. The total size of the property is 8 acres,
the property is vacant. The permanent pipeline easement is approximately 387.99-foot long,
50-foot wide and comprises about 0.445 acres. Temporary Easements including a temporary
access road on this property comprise 0.722 acres.
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Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Using the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $1,400 to $2,778 per
acre, Mr. Kelly concluded that the indicated market value per acre was $1,700.00, with the value
of the whole property before taking being $13,600.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $568.00, and the use of temporary
workspace for two years at $245.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $13,032.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $13,032.00 after the taking on January 3, 2019.
Responding to the commissioners’ questions, Mr. Kelly testified that in his opinion, the areas left
after the imposition of the easement are large enough and have access to the existing roadway to
enable development of a residence on the tract, including a well and septic, should one desire, so
there is no diminution in value. Because he did not find any damages to the remainder, Mr. Kelly
concluded that the total just compensation for the taking of the permanent easement and use of
temporary workspace for 24 months with no diminution amount due with respect to the remaining
property was $813.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0483.000 to be persuasive and recommends an award of $813.00 as
the total just compensation for the taking of said easement, use of temporary workspace for twenty-
four months, with no diminution amount due with respect to the remaining property.
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Tract No. CR-0517.010
Remaining named Defendants-landowners: The executor, executrix and, or
administrator of the Estate of Kate Rogene Lawrence Staggs, deceased, and all heirs and
legatees, devisees, trustees, creditors and assigns of Kate Rogene Lawrence Staggs, deceased;
R. C. Staggs; Doretha J. Wall; William David Lawrence; Ila Lawrence; Travis Osborn; Gary
Scott Wall; LaDonna Inman.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000 and BR-0894.000 was incorporated by reference. Mr. Kelly further testified
that he observed this property from the public roadway. The total size of the property is 53.49
acres, it was appraised as consisting of two economic units. The permanent pipeline easement
is approximately 735.64-foot long, 50-foot wide and comprises about 0.844 acres, all located
within the Economic Unit 1. Temporary Easements of 0.844 acres in Economic Unit 1 and
0.746 acres in Economic Unit 2 were used by Midship for twenty-four months.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use for both
economic units in both the “before” and “after” the taking scenarios. Using the sales comparison
approach and having made qualitative adjustments to his six comparable sales ranging in value
from $1,400 to $2,778 per acre for the Economic Unit 1 and six comparable sales ranging in
price from $1,400 to $2,125 per acre for the Economic Unit 2, Mr. Kelly concluded that the
indicated market values per acre were $2,200 for the Economic Unit 1 and $2,100 for the
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Economic Unit 2, with the value of the whole property before taking - $113,678.00.
Based on the indicated values, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $1,393.00, and the use of temporary
workspace for two years at $382.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $112,875 and having attributed 75% reduction in value on 0.746
acres because of the limitation in functionality totaling $1,231, Mr. Kelly concluded the value of
the remainder to be $111,054.00 after the taking on January 3, 2019. Mr. Kelly further concluded
that the total just compensation for the taking of the permanent easement and use of temporary
workspace for 24 months with $1,231.00 in compensation for limitation of functionality of 0.746
acres was $3,006.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0517.010 to be persuasive and recommends an award of $3,006.00
as the total just compensation for the taking of said easement, use of temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No. CR-0711.000
Remaining Named Defendants-landowners: The executor, executrix and, or
administrator of the Estate of Mamie Hutchins, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Mamie Hutchins, deceased.3
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
3 The commissioners are informed that the Tract CR-0711.000 is a part of a larger property
consisting of four tracts including the tract at issue, and that Midship has settled with the title
owner in possession of all four tracts and has paid the agreed upon compensation. The remaining
named defendant-landowner or her heirs could have a claim to no more than 80 acres of the whole
property.
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materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000 and BR-0894.000 was incorporated by reference. Mr. Kelly further testified
that he appraised all four tracts as one unit. The property of 1,608.19 acres is a mix of native
and improved pastureland and irrigated croplands. It is burdened with at least two pipelines and
a high-voltage powerline and is about 60% in the 100-year floodplain.
The permanent pipeline easement on this property is approximately 2656.34-foot long,
50-foot wide and comprises about 3.049 acres on this tract and 4.58 acres on all tracts on this
Property; Temporary Easements on this tract comprise 4.139 acres and about 7.21 acres on all
tracts on this property. Mr. Kelly testified that using a four-prong highest and best use test of
legally permissible, physically possible, financially feasible and maximally productive, he
concluded that the highest and best use for the property was agricultural in both the “before”
and “after” the taking scenarios. Using the sales comparison approach and having made
qualitative adjustments to his comparable sales ranging in value from $2,111 to $3,483 per acre,
Mr. Kelly concluded that the indicated market value per acre for the whole property was $3,000,
with the value of the whole property before taking being $4,824,570.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement on all four tracts at $10,535.00, and the use of
temporary workspace for two years at $4,327. Using a two-step analysis, with the value of the
remainder before the acquisition being $4,814,265 and having found no damages to the
remainder, Mr. Kelly concluded the value of the remainder to be $4,814,265 after the taking on
January 3, 2019. Because he did not find any damages to the remainder, Mr. Kelly further
concluded that the total just compensation for the taking of the permanent easement and use of
the temporary workspace for 24 months with no diminution amount due with respect to the
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remaining property was $14,632.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0711.000 to be persuasive. The Commission took into consideration
the fact that the title owner in possession of the property has granted Midship the easements sought
and has been paid in full for the grant of the permanent and temporary easements, and that the
remaining named defendant could only potentially claim interest in about 80 acres of land. The
commission, therefore, recommends an award of nominal damages in the amount of $500.00 as
the total just compensation for the taking of the said easement, use of the temporary workspace
and temporary access road for twenty-four months, with no diminution amount due with respect
to the remaining property.
Tract No. CR-0484.000
Remaining named Defendants-landowners: Lule H. Pettus, a/k/a Lula H. Pettus,
whether alive or deceased, and, if deceased, the executor, executrix and, or administrator of
the Estate of Lule H. Pettus a/k/a Lula H. Pettus, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Lule H. Pettus, a/k/a Lula H. Pettus, deceased; Eugene
Franklin, whether alive or deceased, and, if deceased, the executor, executrix or
administrator of the Estate of Eugene Franklin, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Eugene Franklin, deceased; Carlin Pennon.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000 and BR-0894.000 was incorporated by reference.
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The total size of the property is 6.320 acres, it is an irregular tract of land, unimproved
as of the date of the appraisal. The permanent pipeline easement is approximately 142.98-foot
long, 50-foot wide and comprises about 0.164 acres. Temporary Easements, including a
temporary access road, on this property comprise 0.316 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use both in the “before”
and “after” the taking scenarios. Utilizing the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $1,400 to $2,778 per
acre, Mr. Kelly testified that his conclusion of the indicated market value per acre was $1,700,
with the value of the whole property before taking being $10,744.00. Mr. Kelly stated that he
took into account that in different parts of the Counties under consideration rates of appreciation
may differ depending on various economic circumstances.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $209.00, and the use of temporary
workspace for two years at $74.00. Mr. Kelly testified that he did not find damages to a 0.09-
acre part of the property in the easternmost corner because that portion of the property even before
the imposition of the easement was abutting the road at an angle limiting its use.
Using a two-step analysis, with the value of the remainder before the acquisition being
$10,535.00 and having found no damages to the remainder, Mr. Kelly concluded the value of the
remainder to be $10,535.00 after the taking on January 3, 2019. Because he did not find any
damages to the remainder, Mr. Kelly concluded that the total just compensation for the taking of
the permanent easement and use of the temporary workspace and temporary access road for 24
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months with no diminution amount due with respect to the remaining property was $283.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0484.000 to be persuasive and after making adjustments for normal
or typical yearly increases in market value per acre per year recommends an award of $500.00 as
the total just compensation for the taking of said easement, use of the temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No.CR-0497.000
Named Defendants-landowners: The Estate of Charlene Breath, the executor, or
executrix or administrator of the Estate of Charlene Breath, deceased, and all heirs and, or
legatees, devisees, trustees, creditors and assigns of Charlene Breath.
Ms. Glenda Davis and Mr. Wayne Breath, children of Charlene Breath, participated in the
hearing. Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and materials
he used to appraise the properties at issue in this case given during the hearings on tracts BR-
0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property is currently used as rural residential. The total size of the property is 11.65
acres, the permanent pipeline easement is approximately 489.93-foot long, 50-foot wide and
comprises about 0.562 acres. Temporary Easements on this property comprise 0.653 acres.
There are two pipeline easements on the property and a three-phase distribution power line.
Mr. Kelly testified that using a four-prong highest and best use test of legally permissible,
physically possible, financially feasible and maximally productive, he concluded that the highest
and best use for the property was for rural residential in both the “before” and “after” the taking
scenarios. Using the sales comparison approach and having made qualitative adjustments to his
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six comparable sales ranging in value from $1,400 to $2,778 per acre, Mr. Kelly concluded that
the indicated market value per acre was $2,000, with the value of the whole property before taking
being $23,300.00 when valued as vacant. The Commission credited Mr. Kelly’s testimony that
including the value of the house into valuation of land would be improper methodologically,
because only land is being acquired in this condemnation action, and that he did take into
consideration the improvement in the “before” scenario but segregated it to value only land, as
he did with the comparable sales. Additionally, the pipeline intersects the property in the
northwest corner and does not impact the residence. The Commission further credited Mr.
Kelly’s testimony that he did not assign any damages to the strip of land on the other side of the
road because it was orphaned in the “before” scenario; similarly, he considered a 0.65-acre strip
west of the to be of limited utility in the “before” scenario because of the existing easements in
that area.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $843.00, and the use of temporary
workspace for two years at $261.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $22,457.00 and having found no damages to the remainder Mr. Kelly
concluded the value of the remainder to be $22,457 after the taking on January 3, 2019. Because
he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use of temporary workspace for 24
months with no diminution amount due with respect to the remaining property was $1,104.00.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract CR-0497.000 to be persuasive and after making adjustments for
normal or typical yearly increases in market value per acre per year recommends an award of
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$1,104.00 as the total just compensation for the taking of said easement, use of the temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
Tracts Nos. CR-0502.000 and CR-0503.000
Named Defendants-landowners: Gerlene Miller as Personal Representative of the
estates of Isaak Franklin and Annie B. Franklin. Attorney Adam Sanders of Whitten Burrage
was present at the hearing. Commission denied Mr. Sander’s request to continue the hearing.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The total
size of the property is 38.260 acres, the permanent pipeline easement is approximately 1,495.80-
foot long, 50-foot wide and comprises about 1.717 acres. Temporary Easements on this
property, including a temporary access road, comprise 2.804 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and residential use in both the
“before” and “after” the taking scenarios. Utilizing the sales comparison approach and having
made qualitative adjustments to his six comparable sales ranging in value from $1,400 to $2,125
per acre, Mr. Kelly concluded that the indicated market value per acre was $1,800.00, with the
value of the whole property before taking being $68,868.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $2,318.00, and the use of temporary
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workspace for two years at $1,009. Mr. Kelly valued at $1,080 possible limitation on use of
approximately 0.8 acres due to the route of the pipeline. Using a two-step analysis, with the value
of the remainder before the acquisition being $66,550 and valuing damages to the remainder at
$1,080.00 Mr. Kelly concluded the value of the remainder to be $65,470.00 after the taking on
January 3, 2019. Mr. Kelly concluded that the total just compensation for the taking of the
permanent easement and use of temporary workspace for 24 months and partial diminution of
value of 0.8 acres on the property to the remaining property was $4,407.00. Answering the
Commission’s questions Mr. Kelly testified that, if one were to use $1,945 as a price per acre, the
compensation number would rise to $4,762.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tracts CR-0502.000 and CR-0503.000 to be persuasive and recommends an
award of $4,762.00 as the total just compensation for the taking of said easement, use of the
temporary workspace for twenty-four months, with no diminution amount due with respect to the
remaining property.
Tract No._CR-0484.010
Remaining named Defendants-landowners: The executor, executrix and, or
administrator of the Estate of Janet McAfee Ayres, deceased, and all heirs or legatees,
devisees, trustees, creditors and assigns of Janet McAfee Ayres, deceased. 4
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
4 The commissioners are informed that Midship has settled with the title owner in possession of
the property and has paid the agreed upon compensation.
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tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property is currently unimproved, has several producing oil and gas wells and a tank
battery on it. The total size of the property is 34.67 acres, which are divided in two economic
units for valuation. The permanent pipeline easement is approximately 1,981.54-foot long, 50-
foot wide and comprises about 0.570 acres and is located fully within the Economic Unit 2.
Temporary Easements, including a temporary access road, on this property comprise 1.648 acres
acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Utilizing the sales comparison approach and
having made qualitative adjustments to his six comparable sales ranging in value from $1,400
to $2,700 per acre, Mr. Kelly concluded that the indicated market value per acre was $1,700 for
the Economic Unit 1 and $1,600 for the Economic Unit 2, with the value of the whole property
before taking being $56,733.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $684.00, and the use of the temporary
workspace for two years at $2,365.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $56,049, Mr. Kelly valued at $1,920 perceived limited utility of 0.57
acres in the southwestern corner of the Economic Unit 2. Mr. Kelly concluded the value of the
remainder to be $54,129 after the taking on January 3, 2019. Mr. Kelly further concluded that
the total just compensation for the taking of the permanent easement and use of temporary
workspace for 24 months with no diminution amount due with respect to the remaining property
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was $4,969.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0484.010 to be persuasive and recommends an award of nominal
damages in the total amount of $500.00 as the total just compensation for the taking of said
easement, use of the temporary workspace for twenty-four months, with no diminution amount
due with respect to the remaining property.
Tract No. CR-0484.020
Remaining named Defendants-landowners: Carlin Pennon, Tina Pennon, The
executor, executrix and, or administrator of the Estate of Anna Mae Cato, nee Pettus,
deceased, and all heirs or legatees, devisees, trustees, creditors and assigns of Anna Mae Cato,
nee Pettus, deceased; The executor, executrix or administrator of the Estate of Lawrence
Pettus, deceased, and all heirs or legatees, devisees, trustees, creditors and assigns of
Lawrence Pettus, deceased.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. Only a
Temporary Access Road easement of 0.122 acres was condemned by Midship on this property.
Mr. Kelly testified that using a four-prong highest and best use test of legally permissible,
physically possible, financially feasible and maximally productive, he concluded that the highest
and best use for the property was for rural residential use in both the “before” and “after” the
taking scenarios. Using the sales comparison approach and having made qualitative adjustments
to his six comparable sales ranging in value from $1,500 to $2,700 per acre, Mr. Kelly concluded
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that the indicated market value per acre was $1,900, with the value of the whole property before
taking being $1,900.
Based on the rights being acquired – a temporary easement only - Mr. Kelly did not
perform an “after” valuation. He treated use of the temporary road as a land lease and applied a
10% rental rate for two-year period valuing the use of temporary workspace for two years at
$47.00. Mr. Kelly further testified that he did not apply discounting in this instance as he dealt
with a short timeframe.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract CR-0484.020 to be persuasive and recommends an award of
$47.00 as the total just compensation for the taking of the temporary access easement for twenty-
four months, with no diminution amount due with respect to the remaining property.
Tract No.CR-0485.000
Named Defendants-landowners: Tina Pennon; The executor, executrix or
administrator of the Estate of Anna Mae Cato, nee Pettus, deceased, and all heirs and, or
legatees, devisees, trustees, creditors and assigns of Anna Mae Cato, nee Pettus, deceased;
The executor, executrix and, or administrator of the Estate of Lawrence Pettus, deceased, and
all heirs or legatees, devisees, trustees, creditors and assigns of Lawrence Pettus, deceased.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The
property is currently unimproved. The total size of the property is 2.210 acres. Only a
Temporary Access Road easement of 0.011 acres was condemned by Midship on this property.
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Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Utilizing the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $1,500 to $2,700 per
acre, Mr. Kelly further concluded that the indicated market value per acre was $1,600, with the
value of the whole property before taking being $3,536.00. Mr. Kelly’s lower valuation of this
property in comparison to the neighboring tract CR-0484.020 is largely due to its irregular shape
and extreme narrowness.
Based on the rights being acquired, Mr. Kelly did not perform an “after” valuation. Mr.
Kelly treated the use of the temporary road as a land lease and applied a 10% rental rate for the
two-year period valuing the use of temporary workspace for two years at $4.00. Mr. Kelly further
testified that he did not use discounting in this instance as he dealt with a short period of use.
The Commission finds the evidence presented about just compensation for the taking of
the easement on Tract CR-0485.000 to be persuasive and recommends an award of $4.00 as the
total just compensation for the taking of the temporary access easement for twenty-four months,
with no diminution amount due with respect to the remaining property.
Tract No. CR-0486.020
Remaining named Defendants-landowners: Robert R. Pennon; The executrix or
administrator of the Estate of Devola Langetta Pennon, deceased, and all heirs or legatees,
devisees, trustees, creditors and assigns of Devola Langetta Pennon, deceased; Carlin
Pennon.
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Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The
property is improved with a residence. The residence and related improvements were removed
from the easement and were not valued. The total size of the property is 1.0 acres. Only a
Temporary Access Road easement of 0.122 acres was condemned by Midship on this property.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Utilizing the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $1,500 to $2,700 per
acre, Mr. Kelly concluded that the indicated market value per acre was $1,900, with the value
of the whole property before taking being $1,900.00. Mr. Kelly, in response to the
Commissioners’ questions, testified that he did not think using the property for commercially
operating scrap yard was feasible given the location, size and access issues. The scrap currently
visible on the property appears to belong to the owner-resident.
Based on the rights being acquired, Mr. Kelly did not perform an “after” valuation. He
treated the use of the temporary road as a land lease and applied a 10% rental rate for the two-
year period valuing the use of temporary workspace for two years at $46.00.
The Commission finds the evidence presented about just compensation for the taking of
the easement on Tract CR-0486.020 to be persuasive and recommends an award of $46.00 as the
total just compensation for the taking of the temporary access easement for twenty-four months,
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with no diminution amount due with respect to the remaining property.
Tract No. CR-0494.000
Named Defendants-landowners: Rosie Breath, whether alive or deceased, and, if
deceased, the executor, executrix or administrator of the Estate of Rosie Breath, deceased,
and all heirs or legatees, devisees, trustees, creditors and assigns of Rosie Breath, deceased.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property is currently improved with a manufactured mobile home and shed
structures. These improvements were removed from the acquisition and were not valued as part
of the appraisal. The property is a mix of open pastureland and wooded acreage. Surface oil
and gas activity exists in the southern half of the tract with several pipelines and a lease road
going through the southern half in an east-west direction. The southern portion of the property
is in the 100-year floodplain.
The total size of the property is 37.62 acres, the permanent pipeline easement is
approximately 174.71-foot long, 50-foot wide and comprises about 0.201 acres. Temporary
Easements on this property comprise 0.364 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Utilizing the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $1,500 to $2,125 per
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acre, Mr. Kelly concluded that the indicated market value per acre was $1,800, with the value
of the whole property before taking being $67,716.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $272.00, and the use of the temporary
workspace for two years at $131.00. Using a two-step analysis, Mr. Kelly valued the remainder
before the acquisition at $67,444. Mr. Kelly further concluded that 0.25 acres on the property
will have lesser utility and valued the diminution in value at $338.00. Mr. Kelly explained that
he did not find any damages in the area east of the pipeline easement because the area remained
large enough for the continued determined highest and best use. He similarly did not find any
damages extending to the area south of the “damaged” area, as it was of limited utility in the
“before” scenario, and the pipeline did not reduce it any further.
Mr. Kelly concluded that the value of the remainder was $67,106.00 after the taking on
January 3, 2019. Consequently, Mr. Kelly established that the total just compensation for the
taking of the permanent easement and use of temporary workspace for 24 months with limited
diminution amount due with respect to the remaining property was $741.00.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract CR-0494.000 to be persuasive and after making adjustments for
normal or typical yearly increases in market value per acre per year recommends an award of
$900.00 as the total just compensation for the taking of said easement, use of the temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
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Tract No. CR-0499.000
Named Defendants-landowners: The Unknown Heirs of Clara R. Pettis, deceased,
The Unknown Heirs of Buel Pettus, Sr., deceased.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The
property was unimproved as of the effective date of the appraisal.
The property is burdened with two existing pipelines and oil and gas wells and lease
roads. The total size of the property is 40 acres, the permanent pipeline easement is
approximately 1,834.51-foot long, 50-foot wide and comprises about 2.103 acres, paralleling an
existing pipeline. Temporary Easements, including a temporary access road, on this property
comprise 3.062 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Using the sales comparison approach and having
made qualitative adjustments to his six comparable sales ranging in value from $1,400 to $ 2,125
per acre, Mr. Kelly concluded that the indicated market value per acre was $1,800, with the
value of the whole property before taking valued at $72,000.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $2,840.00, and the use of the temporary
workspace for two years at $1,103.00. Using a two-step analysis, with the value of the remainder
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before the acquisition being $69,160.00 and having found no damages to the remainder Mr. Kelly
concluded the value of the remainder to be $69,160.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that total just
compensation for the taking of the permanent easement and use of temporary workspace for 24
months with no diminution amount due with respect to the remaining property was $3,943.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0499.000 to be persuasive and recommends an award of $3,943.00
as the total just compensation for the taking of said easement, use of the temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No.CR-0501.000
Remaining named Defendants-landowners: J. T. Phillips, whether alive or deceased,
and, if deceased, the executor, executrix or administrator of the Estate of J. T. Phillips,
deceased, and all heirs or legatees, devisees, trustees, creditors and assigns of J. T. Phillips,
deceased; L. V. Phillips, whether alive or deceased, and, if deceased, the executor, executrix
or administrator of the Estate of L. V. Phillips, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of L. V. Phillips, deceased; Derotha Phillips, whether alive or
deceased, and, if deceased, the executor, executrix or administrator of the Estate of Derotha
Phillips, deceased, and all heirs or legatees, devisees, trustees, creditors and assigns of
Derotha Phillips, deceased; Margaret Phillips, whether alive or deceased, and, if deceased,
the executor, executrix or administrator of the Estate of Margaret Phillips, deceased, and all
heirs or legatees, devisees, trustees, creditors and assigns of Margaret Phillips, deceased;
Jessie Phillips.
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Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The
property was unimproved as of the effective date of the appraisal. It consists of a mix of rolling
pastureland and wooded acreage, some wetland areas. It is encumbered with an existing oil
well, three pipelines and a lease road.
The total size of the property is 39.240 acres, the permanent pipeline easement is
approximately 257.36-foot long, 50-foot wide and comprises about 0.295 acres. Temporary
Easements on this property comprise 0.227 acres. Mr. Kelly testified that using a four-prong
highest and best use test of legally permissible, physically possible, financially feasible and
maximally productive, he concluded that the highest and best use for the property was for
agricultural and recreational use in both the “before” and “after” the taking scenarios. Utilizing
the sales comparison approach and having made qualitative adjustments to his six comparable
sales ranging in value from $1,400 to $2,125 per acre, Mr. Kelly concluded that the indicated
market value per acre was $1,700, with the value of the whole property before taking valued at
$6,708.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $377.00, and the use of the temporary
workspace for two years at $77.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $66,331 and having found no damages to the remainder, Mr. Kelly
concluded the value of the remainder to be $66,331 after the taking on January 3, 2019.
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Mr. Kelly explained that he did not find an area of 0.2 acres in the northeastern corner
to be damaged because that area consisted of wetlands collecting a fair amount of surface water;
that area could continue to be used for the same use as before the taking. In Mr. Kelly’s opinion,
the pipeline easement did not create any new limitations to usability of that portion that had not
existed prior to the taking. Because he did not find any damages to the remainder, Mr. Kelly
concluded that total just compensation for the taking of the permanent easement and use of
temporary workspace for 24 months with no diminution amount due with respect to the remaining
property was $454.00.
The Commission finds the evidence presented concerning just compensation for the taking
of the easements on Tract CR-0501.000 to be credible and recommends an award of $454.00 as
the total just compensation for the taking of said easement, use of the temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No. CR-0693.000
Remaining named Defendants-landowners: The executor, executrix and, or
administrator of the Estate of Fred O. Lofton, Sr., deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Fred O. Lofton, Sr., deceased; The executor, executrix and,
or administrator of the Estate of Dorothy Lofton, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Dorothy Lofton, deceased; The executor, executrix or
administrator of the Estate of Fred Lofton, Jr., deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Fred Lofton, Jr., deceased; The executor, executrix or
administrator of the Estate of Craig Lofton, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Craig Lofton, deceased; Wilma J. Peavy Lofton; Etoya Daly;
Andre Brumfield.
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Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property is improved with a manufactured mobile home and related site
improvements. Those improvements are removed from the acquisition area and are not valued
as part of this appraisal. The property is encumbered with a pipeline. The total size of the
property is 39.5 acres, the permanent pipeline easement is approximately 1,322.08-foot long,
50-foot wide and comprises about 4.4 acres. Temporary Easements on this property comprise
1.898 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Utilizing the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $3,333 to $5,049 per
acre, Mr. Kelly concluded that the indicated market value per acre was $4,400, with the value
of the whole property before taking valued at $173,800. Mr. Kelly explained that he did not
consider possible airspace zoning restrictions from a nearby airport because there was an
existing house on the tract, and if such restrictions existed, they have not prevented current and
continued use of the property for its highest and best use. Mr. Kelly further testified that there
is a significant distance to the foreign pipeline laid just south of the subject property, therefore
there is no “orphaning” of that area. Moreover, the southern part of the property has a steep
topography and has no access other than through the rest of the property, thus, the opportunities
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for its development for rural residential use were limited in the “before” scenario.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $5,009.00, and the use of temporary
workspace for two years at $1,670.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $168,791.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $168,791.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use of the temporary workspace for
24 months with no diminution amount due with respect to the remaining property was $6,679.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0693.000 to be credible and persuasive and after making adjustments
for normal or typical yearly increases in market value per acre per year recommends an award of
$7,550.00 as the total just compensation for the taking of said easement, use of the temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
Tract No. CR-0700.000
Named Defendants-landowners: The executor, executrix or administrator of the
Estate of Fred Lofton, Jr., deceased, and all heirs or legatees, devisees, trustees, creditors and
assigns of Fred Lofton, Jr., deceased; The executor, executrix or administrator of the Estate
of Craig Lofton, deceased, and all heirs or legatees, devisees, trustees, creditors and assigns
of Craig Lofton, deceased; Carolyn Pirtle; Elaine Johnson; the executor, executrix or
administrator of the Estate of Luther Johnson, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Luther Johnson, deceased; the executor, executrix or
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administrator of the Estate of Alberta Douglas, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Alberta Douglas, deceased; the executor, executrix and, or
administrator of the Estate of Cecil Johnson, deceased, and all heirs or legatees, devisees,
trustees, creditors and assigns of Cecil Johnson, deceased; Katherine Johnson; Albert
Johnson; Charles Johnson; the executor, executrix or administrator of the Estate of Dorothy
Lofton, deceased, and all heirs or legatees, devisees, trustees, creditors and assigns of Dorothy
Lofton, deceased; David L. Walker; Wilma J. Peavy Lofton.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The
property was unimproved as of the effective date of the appraisal, consisted primarily of
woodland, and most of it was in the floodplain. The property is encumbered with a pipeline,
which Midship is paralleling, and an overhead electric transmission line. The total size of the
property is 19.55 acres, the permanent pipeline easement is approximately 706.51-foot long, 50-
foot wide and comprises about 0.811 acres. Temporary Easements on this property comprise
1.057 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Using the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $3,063 to $4,893 per
acre, Mr. Kelly concluded that the indicated market value per acre was $4,000, with the whole
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property before taking valued at $8,200.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $2,433.00, and the use of the temporary
workspace for two years at $846.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $75,767.00 and having found no damages to the remainder Mr. Kelly
concluded the value of the remainder to be $75,767.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use of the temporary workspace for
24 months with no diminution amount due with respect to the remaining property was
$3,279.00.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0700.000 to be persuasive and after making a slight adjustment for
normal or typical yearly increases in market value per acre per year recommends an award of
$3,300.00 as the total just compensation for the taking of said easement, use of the temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
Tract No._CR-0701.000
Named Defendants-landowners: Denise K. Davis (being one and the same person as
Denise H. Davis), as Special Administrator of the Estate of Warren H. Herriott, deceased,
and all heirs or legatees, devisees, trustees, creditors and assigns of Warren H. Herriott,
deceased; Denise K. Davis (being one and the same person as Denise H. Davis), as Special
Administrator of the Estate of Sammie J. Herriott, deceased, and all heirs or legatees,
devisees, trustees, creditors and assigns of Sammie J. Herriott, deceased. Attorney James
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Randall Miller appeared on behalf of the landowners.
Attorney Miller objected to evidence-taking on these three tracts because, in his opinion,
a settlement had been reached between Midship and the owners of the property. Mr. Miller
further objected to taking of evidence regarding the condition of the property post-date of taking.
Attorney Zabel, on behalf of Midship, responded that a settlement agreement has not been
reached. Mr. Zabel further asserted that any evidence of the construction on the property after
January 3, 2019, was not allowed pursuant to the Court’s instructions, and it could not be in
front of the Commission.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property is currently unimproved, has a creek flowing on it. There is an existing
electric transmission line and a pipeline. Additionally, a significant portion of the property is in
100-year floodplain. The total size of the property is 39.55 acres, the permanent pipeline
easement is approximately 662.60-foot long, 50-foot wide and comprises about 0.761 acres.
Temporary Easements on this property comprise 0.76 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Utilizing the sales comparison approach and
having made qualitative adjustments to his six comparable sales ranging in value from $3,333
to $5,049 per acre, Mr. Kelly concluded that the indicated market value per acre was $4,000.00,
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with the value of the whole property before taking valued at $158,200.
Mr. Kelly testified responding to the Commission’s questions that he relied on all six
comparable sales and did not consider Sale 5 to be an outlier because it allowed him to bracket
the subject property with the properties that are larger in size. Further, it had a creek on it similar
to the subject property. The average per acre value of his comparable sales is $4,425, and among
the factors that led him to the value below that number - the subject property was 90% in the
100-year floodplain, and it did not contain a paved-road frontage. Mr. Kelly testified that
presence of a creek could be considered as an enhancing quality, however, that usually was true
for larger in size properties. He did not consider this tract as one property with two other tracts
because of a slight difference in title. Mr. Kelly further explained that his 2010 FEMA
floodplain map was the most recent available. Mr. Kelly did not know whether an actual flood
has ever happened on the property. Mr. Kelly did not see any Letters of Revision of the
floodplain map caused by XTO’s work in the area.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $2,283.00, and the use of the temporary
workspace for two years at $608.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $155,917.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $155,917.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use thereof temporary workspace for
24 months with no diminution amount due with respect to the remaining property was $2,891.00.
Mr. Kelly agreed that if one were to use per acre value of $4,665 then the total compensation
number would rise to $3,372.00.
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The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0701.000 to be persuasive and after making a slight adjustment for
normal or typical yearly increases in market value per acre per year recommends an award of
$3,500.00 as the total just compensation for the taking of said easement, use of the temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
Tracts No._CR-0703.000 and CR-0709.000
Named Defendants-landowners: Denise K. Davis (being one and the same person as
Denise H. Davis), as Special Administrator of the Estate of Warren H. Herriott, deceased, and
all heirs or legatees, devisees, trustees, creditors and assigns of Warren H. Herriott, deceased;
Denise K. Davis (being one and the same person as Denise H. Davis), as Special Administrator
of the Estate of Sammie J. Herriott, deceased, and all heirs or legatees, devisees, trustees,
creditors and assigns of Sammie J. Herriott, deceased. Attorney James Randall Miller appeared
on behalf of the landowners.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property was unimproved as of the effective date of the appraisal and was used for
cattle and crop-growing. The majority of two tracts are in a 100-year floodplain. The property
is encumbered with two pipelines, one of which Midship pipeline parallels. The total size of the
property is 398.43 acres, the permanent pipeline easement is approximately 3,332.76-foot long,
50-foot wide and comprises about 3.825 acres. Temporary Easements, including a temporary
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access road, on this property comprise 6.011 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Using the sales comparison approach and having
made qualitative adjustments to his six comparable sales ranging in value from $2,307.00 to
$3,483.00 per acre, Mr. Kelly concluded that the indicated market value per acre was $3,000.00,
with the value of the whole property before taking valued at $1,195,290. Mr. Kelly explained
that he included an older 2014 sale of a nearby property because 2014 was a year with the highest
commodities prices for the area, and, given the subject property’s current use for crop production
and cattle operations, he viewed it as very relative. Mr. Kelly’s comparable Sale 6 had water-
selling operation, and he assumed in his appraisal that the subject property would have similar
rights. Sale 6 also had a combination of alfa-alfa, wheat, and cattle-growing, while the subject
property appeared to have only wheat-growing and cattle operations.
Mr. Kelly further testified that the average value of all six comparable sales --$2,679.00
-- was lower than his indicated value, but, if only Sales 5 and 6 were averaged, the number
would be $3,249.50. If the latter number were to be increased by 8% for three years, the number
will rise to $4,093.43. Mr. Kelly did not think that the $4,093.43 per acre value would more
accurately represent the subject property’s value as of the date of taking than his concluded
$3,000 valuation, because, for comparison, a property with the superior than the subject property
characteristics was sold at $3,483 an acre. In the expert’s opinion, plain time-based adjustment
is incorrect without considering other factors. Mr. Kelly confirmed that if an average value of
his six comparable sales, $2,679 per acre, were adjusted by 8% for three years, it would produce
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a $3,374.77 figure. Mr. Kelly disagreed that his concluded per acre value was too low by $375
but agreed that the number was not entirely unreasonable.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $8,606.00, and the use of the temporary
workspace for two years at $3,606.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $1,186,684.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $1,186,684.00 after the taking on January 3,
2019. Because he did not find any damages to the remainder, Mr. Kelly concluded that the total
just compensation for the taking of the permanent easement and use of the temporary workspace
for 24 months with no diminution amount due with respect to the remaining property was
$11,620.00. Mr. Kelly confirmed that if a price per acre of $4,093.43 were used versus $3,000.00
then the total just compensation amount would be $15,855.22, and, if a $3,374.77 figure were
utilized, then the total just compensation number would be $13,071.61.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tracts CR-0703.000 and CR-0709.000 to be persuasive and recommends an
award of $13,000.00 as the total just compensation for the taking of said easement, use of the
temporary workspace for twenty-four months, with no diminution amount due with respect to the
remaining property.
Tract No. CR-0626.000
Named Defendants-landowners: Larry D. Smith and Barbara J. Smith. Without
objections, tract-specific exhibits were admitted in addition to the exhibits common to all tracts.
Mr. Kelly’s testimony regarding his methodology of appraisal and materials he used to appraise
the properties at issue in this case given during the hearings on tracts BR-0893.000, BR-
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0894.000 and CR-0484.000 was incorporated by reference. The property is improved with a
single-family residence, multiple barn or shed structures. These improvements were removed
from the acquisition area and were not valued as part of this appraisal. The property consists of
a mix of open pasture with some woodland dispersed, and some improved pastureland, which
has been used historically for hay production. The property is encumbered with another
pipeline, paralleling Midship’s easement. It also has an airstrip. A portion of the property is in
a 100-year floodplain. The total size of the property is 45.21 acres, the permanent pipeline
easement is approximately 876.85-foot long, 50-foot wide and comprises about 1.006 acres.
Temporary Easements on this property comprise 1.375 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Utilizing the sales comparison approach and
having made qualitative adjustments to his six comparable sales ranging in value from $2,424.00
to $4,893.00 per acre, Mr. Kelly concluded that the indicated market value per acre was
$4,200.00, with the value of the whole property before taking valued at $189,822.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $3,169.00, and the use of the temporary
workspace for two years at $1,155.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $186,713.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $186,713.00 after the taking on January 3, 2019.
Mr. Kelly testified that on a 2.91-acre portion of the property, to which access could be limited
during the construction, he applied a 10% rental value for 24 months, similar to valuing a
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workspace easement, arriving at $2,444.00 in compensation.
Mr. Kelly testified that floodplain on this property did not play the decisive role in his
appraisal. He placed a little more emphasis on comparable Sales 3, 4 and 6 where he did not have
to make adjustments for improvements but did make a “market condition” adjustment for time.
Mr. Kelly disagreed that the average price of Sales 4 and 5 adjusted for time should be considered
as the indicated value per acre for this property. If such a method were used, at least Sale 3 should
be added to consideration. Mr. Kelly confirmed that the average price of Sales 3, 4, 5 and 6
would be $3,626 per acre, and if that number were adjusted by 8% for two years it would produce
$4,229.37.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the
total just compensation for the taking of the permanent easement and use of the temporary
workspace for 24 months with no diminution amount due with respect to the remaining property
was $6,768.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0626.000 to be persuasive and after making adjustments for normal
or typical yearly increases in market value per acre per year recommends an award of $7,250.00
as the total just compensation for the taking of said easement, use of the temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No. CR-0627.000, CR-0628.000, and CR-0629.000
Named Defendants-landowners: Casey B. Smith and Kristy J. Smith.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
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tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property is improved with two single-family residences, barn or shed structures.
These improvements were removed from the acquisition and were not valued as part of this
appraisal. The property contains a mix of pasture and wooded areas. A wet-weather creek
traverses the central part of the property, there is also a stock tank, a part of the property is in
the floodplain. The property is encumbered with at least one other pipeline and an oil and gas
well.
Mr. Kelly appraised all three tracts as one unit based on the unity of ownership, use and
contiguity. The total size of the property is 127.27 acres, the permanent pipeline easement is
approximately 1,902.88-foot long, 50-foot wide and comprises about 2.184 acres. Temporary
Easements on this property comprise 2.3 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Using the sales comparison approach and having
made qualitative adjustments to his six 2016 – 2018 comparable sales ranging in value from
$2,424.00 to $3,550.00 per acre, Mr. Kelly concluded that the indicated market value per acre
was $3,600.00, with the value of the whole property before taking valued at $458,172.00. Mr.
Kelly explained that his Sale 1 was closer in time to the date of taking and similarly had a wet-
weather creek on it. Sales 4, 3 and 2 were also very supportive of his determination, he
concluded value fell on the higher end of his comparable sales. Mr. Kelly opined that adjusting
his indicated value of $3,600 by 8% for two years would increase it to $4,199, but such an
adjustment would disregard other market considerations and would not be proper. Mr. Kelly
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confirmed that an indicated price of $3,800 would not be offensive to him.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $5,897.00, and the use of temporary
workspace for two years at $1,656.00. Mr. Kelly further opined that limited access to 3.1 acres
during construction warranted compensation of a rental value of 10% for 24 months of $2,232.00.
Using a two-step analysis, with the value of the remainder before the acquisition being
$452,275.00 and having found no damages to the remainder, Mr. Kelly concluded the value of
the remainder to be $452,275.00 after the taking on January 3, 2019. Because he did not find any
damages to the remainder, Mr. Kelly concluded that total just compensation for the taking of the
permanent easement and use of temporary workspace and reduced for 24 months access to a small
area for 24 months with no diminution amount due with respect to the remaining property was
$9,785.00.
Mr. Kelly testified that it would be improper to try to value portions of the property
separately and then combine the results. Such an approach would mean a changed highest and
best use of the property for subdivision, and he could not agree with such a conclusion. Mr. Kelly
further explained that he did not find damages to the area between the Kinder Morgan’s pipeline
and Midship’s, because if damages had occurred, they would have occurred in the “before the
Midship’s taking” scenario. Additionally, since he determined that agricultural and recreational
use was the highest and best use for the property, including the portion between the pipelines,
and that highest and best use would not change on that portion, he would not consider it to be
orphaned and leading to diminution to the remainder. Mr. Kelly further confirmed that use of
$3,800 as an indicated per acre value would raise the just compensation amount to $10,328.61.
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The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tracts CR-0627.000, CR-0628.000, and CR-0629.000 to be persuasive and
after making adjustments for normal or typical yearly increases in market value per acre per year
recommends an award of $11,413.00 as the total just compensation for the taking of said easement,
use of the temporary workspace for twenty-four months, with no diminution amount due with
respect to the remaining property.
Tract No. CR-0636.000
Named Defendants-landowners: H&H 1313, Inc. Counsel for the defendant did not
participate in the hearing.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The subject property was unimproved at the time of the appraisal. The total size of the
property is 4.640 acres, permanent pipeline easement is approximately 114.58-foot long, 50-
foot wide and comprises about 0.035 acres with no actual pipeline crossing the property;
Temporary Easements on this property comprise 0.414 acres. There is a pipeline crossing the
same corner of the property as Midship’s but closer to the center, thus, separating the center and
majority of the property from Midship’s easement.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for commercial use in both the “before” and
“after” the taking scenarios. Using the sales comparison approach and having made qualitative
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adjustments to his four comparable sales ranging in value from $10,692 to $70,122 per acre, Mr.
Kelly concluded that the indicated market value per acre was $32,000.00, with the whole
property before taking valued at $147,640.00.
Mr. Kelly testified that he tried to select sales of comparable properties that, in addition
to similarity in size and location, also had similar traffic counts – around 3,000 cars a day. He
further testified that his Sale 1 was located away from I-35, making it inferior. Among the
remaining sales, Sale 3 was highly superior being located within Ardmore. Sale 2 had an I-35
frontage but no direct access to it, while Sale 4 had more similarity to the subject property. Mr.
Kelly was unable to confirm the conditions of sale of the subject property that occurred after
Midship was granted possession of the easements, unconfirmed information shows price of
$42,000 per acre.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $840.00, and the use of the temporary
workspace for two years at $90.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $148,480.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $148,480.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use of the temporary workspace for
24 months with no diminution amount due with respect to the remaining property was $930.00.
Mr. Kelly further testified that if he were to use $42,000 as an indicated price per acre, total just
compensation would rise to $1,240.00.
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The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract CR-0636.000 to be persuasive and recommends an award of
$1,240.00 as the total just compensation for the taking of said easement, use of the temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
Tract No. CR-0701.010
Named Defendants-landowners: Lois J. Lofton Revocable Trust dated August 1, 1997,
Lois J. Lofton, Trustee; Brenda J. Lofton.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The 15-acre property is currently unimproved, consists of pastureland and wooded
acreage. Only a temporary access road on this property comprising 0.369 acres was taken on
this property.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Using the sales comparison approach and having made
qualitative adjustments to his six comparable sales ranging in value from $3,063.00 to $5,049.00
per acre, Mr. Kelly concluded that the indicated market value per acre was $4,300, with the
whole property before taking valued at $64,500.00.
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Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the use of temporary access road for two years at $317.00. Using a two-step
analysis, with the value of the remainder before the acquisition being $64,500.00 and having
found no damages to the remainder, Mr. Kelly concluded the value of the remainder to be
$64,500.00 after the taking on January 3, 2019. Because he did not find any damages to the
remainder, Mr. Kelly concluded that the total just compensation for the use of the temporary
access road for 24 months with no diminution amount due with respect to the remaining property
was $317.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0701.010 to be persuasive and recommends an award of $317.00 as
the total just compensation for the taking of said easement, use of the temporary easements for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No. CR-0704.000
Remaining named Defendants-landowners: Estate of Levi Birt, Jr., deceased, and all
heirs and, or legatees, devisees, trustees, creditors and assigns of Levi Birt., Jr, deceased;
Estate of Ewing C. Lofton, deceased, and all heirs or legatees, devisees, trustees, creditors and
assigns of Ewing C. Lofton, deceased; Brenda Lofton; Gussie Hall.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The
property was unimproved as of the effective date of the appraisal. The property is landlocked
being surrounded by the tracts CR-0701.000 and CR-0703.000. Most of the tract is occupied
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by a drill site.
The total size of the property is 10 acres, the permanent pipeline easement is
approximately 689.36-foot long, 50-foot wide and comprises about 0.791 acres. Temporary
Easements inclusive of a temporary access road on this property comprise 0.897 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for assemblage for agricultural and recreational
use in both the “before” and “after” the taking scenarios, more particularly, to be absorbed by
the surrounding property - Tracts CR-0701.000 and CR-0703.000. While typically such a
property would be 99% discounted, Mr. Kelly appraised it as though vacant.
Using the sales comparison approach and having made qualitative adjustments to his six
comparable sales ranging in value from $2,307.00 to $3,483.00 per acre, Mr. Kelly concluded
that the indicated market value per acre was $3,000, with the whole property before taking valued
at $30,000.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $1,780.00, and the use of the temporary
workspace for two years at $538.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $28,220.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $28,220.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use of the temporary workspace for
24 months with no diminution amount due with respect to the remaining property was $2,318.00.
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Mr. Kelly testified responding to the Commission’s questions that he did not consider
imposition of the Midship’s easement to orphan 0.75 acres south of the easement for a number
of reasons: 1) the property would be already heavily discounted by its limited usability due to a
gas well pad on it; 2) any orphaning would have been done by the pre-existing pipeline easement,
3) the lease road, which Midship crosses, further diminishes usability of that land, 4) the area lies
between the power line and the existing pipeline, and 5) the area is fully located in the floodplain.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract CR-0704.000 to be persuasive and recommends an award of $2,318.00
as the total just compensation for the taking of said easement, use of the temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No. BR-0860.000
Named Defendants-landowners: Larry Hughes and Jerry Hughes.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property it straddles the Bryan and Johnston Counties line. It is improved with the
barn or shed structures and related site improvements. These improvements were removed from
the acquisition area and were not valued as part of this appraisal. A creek runs through the
middle of the property in east-west direction. The property is encumbered with a preexisting
pipeline.
The total size of the property is 411.25 acres, the permanent pipeline easement is
approximately 2.030.71-foot long, 50-foot wide and comprises about 2.331 acres. Temporary
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Easements on this property comprise 2.893 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Utilizing the sales comparison approach and
having made qualitative adjustments to his six comparable sales ranging in value from $1,769
to $3,016 per acre, Mr. Kelly concluded that the indicated market value per acre was $2,500,
with the whole property before taking valued at $1,028.125.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $4,371.00, and the use of the temporary
workspace for two years at $1,447.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $1,023,754 and having found no damages to the remainder, Mr. Kelly
concluded the value of the remainder to remain $1,023,754 after the taking on January 3, 2019.
Mr. Kelly further testified that although his appraisal contained an opinion estimate of
just compensation for possible hunting disruption on 75 acres due to construction, which he
appraised at $10 per acre for 24 months, for the total of $1,500, he should have removed that after
receiving the Court’s instructions and should have deducted $1,500 from his appraisal. Mr. Kelly
testified in response to the Commission’s questions that he used one comparable sale from Love
County because it had a good functional utility comparability with the subject property as to
recreational use facet. Mr. Kelly further testified that plain upward adjustment of the indicated
value based on the timing of comparable sales was not proper. Various considerations must be
allowed with regard to different comparable sales. For example, Sale 2 was half the size of the
subject property and located very close to Durant; Sale 3 was a one third in size and was the
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closest in time – June of 2017; Sale 4 was inferior locationally and did not have as good
recreational characteristics as the subject property, while Sale 6 was larger than the subject
property but had some exceptional recreational and agricultural qualities, for which a premium
was paid. If sales 1, 2, 3 and 5 were averaged, the value would be $2,300 per acre, most of these
sales occurred within 18 months of the date of taking. Mr. Kelly testified that he did not average
the sales but looked instead at characteristics of the properties sold. For example, Sale 3 being
in the immediate proximity had a price of $2,575 an acre. In Mr. Kelly’s observation,
appreciation of the properties of this size and highest best use in that area in 2016-2018 was 4%
to 8%. Mr. Kelly confirmed that utilizing 8% increase to his indicated value would produce
$2,700 per acre.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the
total just compensation for the taking of the permanent easement and use of the temporary
workspace for 24 months with no diminution amount due with respect to the remaining property
was $5,818.00.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract BR-0860.000 to be persuasive and after making adjustments for normal
or typical yearly increases in market value per acre per year recommends an award of $6,285.00
as the total just compensation for the taking of said easement, use of the temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
Tracts No. BR-0903.000, BR-0904.000 and BR-0905.000
Named Defendants-landowners: Misty Hall Murphree; Marla Hall Richardson;
Megan Pearl Murphree; Alex Wendell Wayne Murphree; Torrey McGraw Lester; Kasidy
Niegal Lester; Kalan Craig Richardson; Tanner Blane Richardson; Andy Jack Murphree
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and Marranda Sue Murphree, husband and wife.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. Mr. Kelly
testified that he appraised three tracts together because of the unity of ownership, use and
contiguity. The property was improved with three manufactured homes, barn structures, and
related site improvements as of the effective date of the appraisal. These improvements were
removed from the acquisition and have not been valued as part of the appraisal. The property
primarily consists of open pastureland with some hardwood trees and several stock tanks
scattered throughout. The property access is through a county road. The property is encumbered
with a pipeline easement. The total size of the property is 217.82 acres, the permanent pipeline
easement is approximately 2,891.26-foot long, 50-foot wide and comprises about 4.24 acres.
Temporary Easements, including temporary access road, on this property comprise 5.872 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Utilizing the sales comparison approach and
having made qualitative adjustments to his four comparable sales ranging in value from $2,320
to $2,961 per acre, Mr. Kelly concluded that the indicated market value per acre was $2,700.00,
with the whole property before taking valued at $588,114.00.
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Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $8,586.00, and the use of the temporary
workspace for two years at $3,171.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $579,528.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $579,528.00 after the taking on January 3, 2019.
Mr. Kelly testified in response to the Commission’s questions that he did not find any
damages to the land south of the pipeline but north of the boundary because about 500 feet remain
between the two, and because there was a pre-existing easement there. Because he did not find
any damages to the remainder, Mr. Kelly concluded that the total just compensation for the taking
of the permanent easement and use of the temporary workspace for 24 months with no diminution
amount due with respect to the remaining property was $11,757.00. Mr. Kelly further testified
that he considered his valuation fair and reasonable, however, appreciation of his sales by 8%
would not be unreasonable.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tracts BR-0903.000, BR-0904.000 and BR-0905.000 to be persuasive
and after making adjustments for normal or typical yearly increases in market value per acre per
year recommends an award of $12,700.00 as the total just compensation for the taking of said
easement, use of the temporary workspace for twenty-four months, with no diminution amount
due with respect to the remaining property.
Tract No. BR-0907.000 and BR-0909.000
Named Defendants-landowners: Billy Miller.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
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materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. As of the
effective date of the appraisal, the property was improved with a single-family residence, barn
structures, and related site improvements. These improvements were removed from the
acquisition and were not valued as part of this appraisal. The property historically had
recreational and agricultural use. There is a pipeline easement on the property, which Midship
parallels for a significant distance deviating in one place because of a pond. The total size of
the property is 146.280 acres, the permanent pipeline easement is approximately 2,784.77-foot
long, 50-foot wide and comprises about 3.196 acres. Temporary Easements on this property
comprise 3.956 acres.
The Commission credited Mr. Kelly’s testimony that he appraised two tracts as a single
unit relying on the unity of ownership, contiguity, and the unity of use rule. Mr. Kelly testified
that using a four-prong highest and best use test of legally permissible, physically possible,
financially feasible and maximally productive, he concluded the highest and best use for the
property to be for agricultural and recreational use in both the “before” and “after” the taking
scenarios. Utilizing the sales comparison approach and having made qualitative adjustments to
his four comparable sales ranging in value from $2,320 to $2,961 per acre, Mr. Kelly concluded
that the indicated market value per acre was $2,700.00, with the whole property before taking
valued at $ 394,956.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $6,472.00, and the use of the temporary
workspace for two years at $2,136.00. Using a two-step analysis, Mr. Kelly determined the value
of the remainder before the acquisition to be $ 388,484.00. Mr. Kelly further testified that he did
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not find a different highest and best use resulting from the taking of the Midship’s easement,
however he did recognize a reduced utility of approximately 3.13 acres due to irregular shape
between the two pipeline easements and, consequently, diminished the value of that acreage by
75% valuing compensation at $6,339.00. Thus, Mr. Kelly concluded the value of the remainder
to be $382,145.00 after the taking on January 3, 2019. Based on that finding, Mr. Kelly concluded
that total just compensation for the taking of the permanent easement and use of the temporary
workspace for 24 months with no diminution amount due with respect to the remaining property
was $14,947.00. Mr. Kelly confirmed that adjusting his opinion number by 8% would raise it to
$16,142.76.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tracts BR-0907.000 and BR-0909.000 to be persuasive and recommends an
award of $16,143.00 as the total just compensation for the taking of said easement, use of the
temporary workspace for twenty-four months, with no diminution amount due with respect to the
remaining property.
Tract No. BR-0925.000
Named Defendants-landowners: The estate of Donald Andrew Morris, the executor,
or executrix or administrator of the Estate of Donald Andrew Morris, deceased, and all heirs
or legatees, devisees, trustees, creditors and assigns of Donald Andrew Morris.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The
property is currently open, improved pasture with no buildings. The property is burdened with
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a pipeline easement. The total size of the property is 32 acres, the permanent pipeline easement
is approximately 1,514.93-foot long, 50-foot wide and comprises about 1.739 acres. Temporary
Easements on this property comprise 1.738 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational in both the
“before” and “after” the taking scenarios. Utilizing the sales comparison approach and having
made qualitative adjustments to his five comparable sales ranging in value from $2,000.00 to
$3,400.00 per acre, Mr. Kelly concluded that the indicated market value per acre was $2,800.00,
with the whole property before taking valued at $89,600.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $3,652.00, and the use of temporary
workspace for two years at $973.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $85,948.00 and having found no damages to the remainder, Mr.
Kelly concluded the value of the remainder to be $85,948.00 after the taking on January 3, 2019.
Because he did not find any damage to the remainder, Mr. Kelly concluded that total just
compensation for the taking of the permanent easement and use of the temporary workspace for
24 months with no diminution amount due with respect to the remaining property was $4,625.00.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tract BR-0925.000 to be persuasive and recommends an award of
$4,625.00 as the total just compensation for the taking of said easement, use of the temporary
workspace for twenty-four months, with no diminution amount due with respect to the remaining
property.
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Tracts No._BR-0994.000, BR-0995.000 and BR-0996.000
Named Defendants-landowners: Henderson G. Anderson and Sherron Katherine
Anderson, Co-Trustees of the Anderson Family Revocable Trust under written agreement
dated January 21, 2009.
The Commission was apprised that FERC authorized a reroute involving this property
due to nearby ecological and cultural finds along the original route. Because of the reroute, part
of the Midship’s easements was condemned in this case, while a part was condemned in the
state court. In state court, the special commissioners have set their award that was deposited
with the state court, but the trial is pending. In this case, Midship was seeking compensation
for only the portion of the route condemned in federal court.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. Mr. Kelly
testified that, based on the unity of ownership, use and contiguity, he appraised all three tracts
as one unit. He provided separate appraisal numbers for the portions condemned in the federal
case as well as in the state case.
Mr. Kelly testified that this property consists of a mix of improved pasture, native
pasture, and woodland. The property is located along the south side of East County Road 2078,
and approximately 225 feet west of Sulphur Springs Road. It was unimproved as of the effective
date of the appraisal. The total size of the property is 360 acres, the permanent pipeline easement
on the condemned in federal court portion of the route comprises about 2.481 acres. Temporary
Easements on the condemned in federal court portion of the route comprise 3.546 acres.
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Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational in both the
“before” and “after” the taking scenarios. Utilizing the sales comparison approach and having
made qualitative adjustments to his four comparable sales ranging in value from $1,66.00 to
$2,732.00 per acre, approximately 16-18 months prior to the date of taking, Mr. Kelly concluded
that the indicated market value per acre was $2,100.00, with the value of the whole property
before taking to be $756,000.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement on the portion condemned in federal court at
$3,908.00, and the use for two years of the temporary workspace on the portion condemned in
federal court at $1,489.00. Using a two-step analysis, Mr. Kelly appraised the value of the
remainder before the acquisition at $ 747,515.00.
Mr. Kelly further testified that he did not find any diminution to the remainder caused
by the imposition of the easements taken in the federal case, but he did assign a partial limitation
on use of 6.6 acres between the two pipeline easements on the portion condemned in the state
court. Consequently, Mr. Kelly concluded the value of the remainder to be $737,121.00 after the
taking in both federal and state courts. Mr. Kelly concluded that the total just compensation for
the taking of the permanent easement and use of temporary workspace for 24 months on the
portion condemned in federal court with no diminution amount due with respect to the remaining
property was $5,397.00.
Responding to the Commission’s questions, Mr. Kelly testified that if the Commission
were to appreciate his indicated market value by 8% and then by 4% to adjust from his
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comparable sales to the date of taking, the indicated per acre value would be $2,358.72, and the
total compensation number based on that value would be $6,100.00.
The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tracts s BR-0994.000, BR-0995.000 and BR-0996.000 to be persuasive
and recommends an award of $6,100.00 as the total just compensation for the taking of said
easement, use of temporary workspace for twenty-four months on the portion condemned in
federal court, with no diminution amount due with respect to the remaining property on the portion
condemned in federal court.
Tracts No. BR-0991.000 and BR-0993.000
Named Defendants-landowners: Wayne Caldwell and Donna Caldwell.
The Commission was apprised that FERC authorized a reroute involving this property
due to ecological and cultural finds along the original route. Because of the reroute, Midship
did not take a permanent easement to build a pipeline on the tracts at issue, nor did it use any
portion of the property temporary as workspace.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. Mr. Kelly
testified that because no taking has occurred, he did not update his appraisal of 2017.
Per his 2017 appraisal, before the pipeline was re-rerouted, the property was appraised
as unimproved. The total size of the property is 73.3 acres. Mr. Kelly appraised both tracts as
one unit due to the unity of ownership, use and contiguity.
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Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Utilizing the sales comparison approach and
having made qualitative adjustments to his four comparable 2015-2016 sales ranging in value
from $2,200.00 to $2,813.00 per acre, Mr. Kelly concluded that the indicated market value per
acre was $2,500.00, with the value of the whole property before taking valued at $ 183,250.00.
Based on the indicated value, and using a two-step analysis, Mr. Kelly concluded the
value of the remainder before the potential acquisition to be $179,363.00. If the permanent
easement were acquired, Mr. Kelly valued the compensation for it at $3,887.00, and potential use
of the temporary workspace for 24 months at $1,468.00. Mr. Kelly did not find any damages to
the remainder by the potential imposition of the permanent easement. Having found no damages
to the remainder Mr. Kelly concluded the value of the remainder to remain $179,363.00. Because
he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use of the temporary workspace for
24 months with no diminution amount due with respect to the remaining property was $5,355.00.
However, no easements, neither permanent not temporary, have ultimately been taken by Midship
on these tracts. The only use of the property could have been to conduct a cultural survey.
Therefore, Midship requested nominal damages to be awarded for use of the property for cultural
survey.
Mr. Kelly agreed that if the Commission assumed 8% appreciation of his appraised
compensation it would rise to $5,783.40.
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The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tracts BR-0991.000 and BR-0993.000 to be persuasive and recommends an
award of nominal damages in the amount of $1,000.00 as the total just compensation for the taking
of said easement, use of the temporary workspace for twenty-four months, with no diminution
amount due with respect to the remaining property.
Tracts No. BR-1000.000 and BR-1001.000
Named Defendants-landowners: Nolen G. Grounds and Jackie M. Grounds; The
executor, executrix or administrator of the Estate of Paul Akins, deceased, and all heirs or
legatees, devisees, trustees, creditors and assigns of Paul Akins, deceased; the executor,
executrix or administrator of the Estate of Clifford Akins, deceased, and all heirs or legatees,
devisees, trustees, creditors and assigns of Clifford Akins, deceased.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference.
The property is improved with a manufactured home, barn structures and related site
improvements. These improvements are removed from the proposed acquisition and have not
been valued as part of Mr. Kelly’s appraisal. An S-shaped creek runs through the property.
There is a pre-existing pipeline easement on the property. The total size of the property is 45.7
acres, the permanent pipeline easement is approximately 770.47-foot long, 50-foot wide and
comprises about 0.884 acres. Temporary Easements on this property comprise 0.858 acres.
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Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
the “before” and “after” the taking scenarios. Utilizing the sales comparison approach and
having made qualitative adjustments to his five 2016-2018 comparable sales ranging in value
from $2,000 to $2,900 per acre, Mr. Kelly concluded that the indicated market value per acre
was $2,700.00, with the value of the whole property before taking valued at $123,390.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $1,790.00, and the use of temporary
workspace for two years at $464.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $121,600.00 and having found no damages to the remainder Mr.
Kelly concluded the value of the remainder to be $121,600.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use of the temporary workspace for
24 months with no diminution amount due with respect to the remaining property was $2,254.00.
Mr. Kelly testified that if he were to value the tracts separately, if there were not a
complete unity of ownership, he would be comfortable valuing the 35-acre tract at $2,700 and
the 10-acre tract at a high of $3,240 per acre. Under those circumstances, calculated just
compensation for the 10-acre tract would be $761.00 and for 35-acre tract - $1,791.00. If those
numbers were to be increased by 8%, the total just compensation amount for the 10-acre tract
would be $1,934.28 and for $35-acre tract $822.00, total for both tracts - $2,756.28.
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The Commission finds the evidence presented with regard to just compensation for the
taking of the easement on Tracts BR-1000.000 and BR-1001.000 to be persuasive and recommends
an award of $2,760.00 as the total just compensation for the taking of said easement, use of the
temporary workspace for twenty-four months, with no diminution amount due with respect to the
remaining property.
Tract No. BR-1002.000
Named Defendants-landowners: The William T Cooley and Frances L Cooley
Survivors Trust, Frances L. Cooley Trustee; Billy Gene Risner; Franklin James Risner;
David Alan Risner; Michelle Berdahl; Charleen Hunter; The Unknown Heirs of Franklin
Delano Risener; The Unknown Heirs of Jack Wesley Risener; The Unknown Heirs of George
Gunter Risener; The Unknown Heirs of Billie Gene Risener.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and materials
he used to appraise the properties at issue in this case given during the hearings on tracts BR-
0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The property was
unimproved as of the effective date of the appraisal, consists of a mix of hardwoods and
pastureland, and there are two stock tanks on it. There is a pre-existing pipeline easement on the
property. The total size of the property is 100 acres, the permanent pipeline easement is
approximately 2,830.7-foot long, 50-foot wide and comprises about 3.249 acres. Temporary
Easements on this property comprise 3.53 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for agricultural and recreational use in both
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the “before” and “after” the taking scenarios. Using the sales comparison approach and having
made qualitative adjustments to his six 2015-2018 comparable sales ranging in value from
$2,000 to $2,900 per acre, Mr. Kelly concluded that the indicated market value per acre was
$2,400.00, with the whole property before taking valued at $240,000.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $5,849.00, and the use of temporary
workspace for two years at $1,695.00. Using a two-step analysis, with the value of the
remainder before the acquisition being $234,151.00 and having found no damages to the
remainder, Mr. Kelly concluded the value of the remainder to be $234,151.00 after the taking
on January 3, 2019. Because he did not find any damages to the remainder, Mr. Kelly concluded
that total just compensation for the taking of the permanent easement and use of the temporary
workspace for 24 months with no diminution amount due with respect to the remaining property
was $7,544.00.
Responding to the Commission’s questions, Mr. Kelly testified that he did not think there
was a need for time adjustment, because one of his comparable sales occurred in 2018 and was
at $2,000. Mr. Kelly further testified that he did not think that straight mathematical adjustment
of 2015 sale should be used, as all his sales bring in different facets to value the subject property
and he considered his valuation to be appropriate.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract BR-1002.000 to be persuasive and after making adjustments for normal
or typical yearly increases in market value per acre per year recommends an award of $9,335.00
as the total just compensation for the taking of said easement, use of the temporary workspace for
twenty-four months, with no diminution amount due with respect to the remaining property.
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Tracts No._ JO-0753.000 and JO-0754.00
Named Defendants-landowners: Raymond A. Hulsey; Ranada D. Hulsey. Without
objections, tract-specific exhibits were admitted in addition to the exhibits common to all tracts.
Mr. Kelly’s testimony regarding his methodology of appraisal and materials he used to appraise
the properties at issue in this case given during the hearings on tracts BR-0893.000, BR-
0894.000 and CR-0484.000 was incorporated by reference. The property was improved with a
mobile home and multiple barn/shed structures as of the effective date of the appraisal. These
improvements were removed from the acquisition area and were not valued as part of this
appraisal. The total size of the property is 22.080 acres, and it was valued as one unit based on
the unity of ownership, use and contiguity. Rock Creek Road traverses the property. The
property is traversed by a pre-existing pipeline easement. The permanent pipeline easement is
approximately 859.94-foot long, 50-foot wide and comprises about 0.988 acres. Temporary
Easements on this property comprise 0.388 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally
permissible, physically possible, financially feasible and maximally productive, he concluded
that the highest and best use for the property was for rural residential use in both the “before”
and “after” the taking scenarios. Utilizing the sales comparison approach and having made
qualitative adjustments to his four comparable sales ranging in value from $3,063.00 to
$3,667.00 per acre, Mr. Kelly concluded that the indicated market value per acre was $3,500.00,
with the value of the whole property before taking being $77,280.00. One of his comparable
sales was within the same subdivision and was sold at $3,063 per acre.
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Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $ 2,593.00, and the use of temporary
workspace for two years at $272.00. Using a two-step analysis, with the value of the remainder
before the acquisition being $74,687.00 and having found no damages to the remainder Mr. Kelly
concluded the value of the remainder to be $74,687.00 after the taking on January 3, 2019.
Because he did not find any damages to the remainder, Mr. Kelly concluded that the total just
compensation for the taking of the permanent easement and use of the temporary workspace for
24 months with no diminution amount due with respect to the remaining property was $2,865.00.
In response to the Commission’s questions, Mr. Kelly testified that if the Commission
were to find that there was an orphaned area between two pipeline easements area it would
comprise about 0.43 acres, with compensation for that area based on the indicated value being
$1,129.00. Mr. Kelly testified that he did not think orphaning in this case would be appropriate
as the other easement was a blanket easement, i.e., the pipeline could claim whatever it deemed
reasonable, and Midship was paralleling it.
The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tracts s JO-0753.000 and JO-0754.00 to be persuasive and recommends an
award of $2,865.00 as the total just compensation for the taking of said easement, use of the
temporary workspace for twenty-four months, with no diminution amount due with respect to the
remaining property.
Tract No. JO-0758.000
Named Defendants-landowners: Robert Eugene Harris.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
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materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The 20-
acre property was improved with multiple barn/shed structures and related site improvements
as of the effective date of the appraisal. These improvements were removed from the acquisition
area and were not valued as part of this appraisal. The permanent pipeline easement is
approximately 557.57-foot long, 50-foot wide and comprises about 0.638 acres; no Temporary
Easements were used on this property.
Mr. Kelly testified that using a four-prong highest and best use test of legally permissible,
physically possible, financially feasible and maximally productive, he concluded that the highest
and best use for the property was for rural residential in both the “before” and “after” the taking
scenarios. Utilizing the sales comparison approach and having made qualitative adjustments to
his four 2016-2018 comparable sales ranging in value from $3,063.00 to $3,667.00 per acre, Mr.
Kelly concluded that the indicated market value per acre was $3,500.00, with the value of the
whole property before taking valued at $70,000.00.
Based on the indicated value, the rights being acquired and the size of the easements,
Mr. Kelly valued the permanent pipeline easement at $1,675.00. Using a two-step analysis, Mr.
Kelly determined the value of the remainder before the acquisition to be $68,325.00. He
determined a reduced utility of an area of 0.27 acres between the pipeline and the road and valued
the remaining value of that area at $236.00. Mr. Kelly concluded the value of the remainder to
be $ 67,616.00 after the taking on January 3, 2019. Mr. Kelly further concluded that the total just
compensation for the taking of the permanent easement with diminution amount due with respect
to the remaining property was $2,384.00.
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The Commission finds the evidence presented regarding just compensation for the taking
of the easement on Tract JO-0758.000 to be persuasive and recommends an award of $2,384.00 as
the total just compensation for the taking of said easement, use, if any, of the temporary workspace
for twenty-four months, with no diminution amount due with respect to the remaining property.
Tract No. JO-0819.000
Named Defendants-landowners: Ralph D. Ragan.
Without objections, tract-specific exhibits were admitted in addition to the exhibits
common to all tracts. Mr. Kelly’s testimony regarding his methodology of appraisal and
materials he used to appraise the properties at issue in this case given during the hearings on
tracts BR-0893.000, BR-0894.000 and CR-0484.000 was incorporated by reference. The 39.28-
acre property had a mobile home as of the effective date of the appraisal. The permanent
pipeline easement is approximately 659.94-foot long, 50-foot wide and comprises about 0.758
acres. Temporary Easements on this property comprise 1.238 acres.
Mr. Kelly testified that using a four-prong highest and best use test of legally permissible,
physically possible, financially feasible and maximally productive, he concluded that the highest
and best use for the property was for agricultural and recreational use in both the “before” and
“after” the taking scenarios. Using the sales comparison approach and having made qualitative
adjustments to his six comparable sales ranging in value from $2,163.00 to $3,333.00 per acre,
Mr. Kelly concluded that the indicated market value per acre was $3,000, with the whole property
before taking valued at $117,840.00.
In response to the Commission’s questions Mr. Kelly testified that his Sales 1 and 2 were
the most recent, less than one year old, bracketed the subject property in size and value, with sale
1 being the only one above $3,000.
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Dated this 17th day of April, 2023.
6:18-cv-00302-RAW Document 904 Filed in ED/OK on 04/17/23 Page 86 of 86