that it stands for the proposition that when the measure of damage is under state law the burden of proof is also under state law or is this is situation where law the burden of proof would be on your client my question for you is a little bit different i understand that the district court used the state measure damage measure of just compensation that you also have to use state law for the burden of proof but i believe they go hand in hand there is an answer to the question  isn't that just a matter of just procedure where we follow the federal procedure in a kind of federal court federal courts have long there's no question under georgia law the fact of ownership of property is given a lot of importance i mean even under georgia law doesn't even apply for the determination of who can testify as to the value of a piece of property that the landowner does not have to be an expert to testify as to the value of their own property but that's that's a lie opinion test my expert opinion testimony would be subject to doubt but what i'm saying is under the georgia statute it specifically says and doesn't apply it uses the federal well that may be true but and in a case like even even a state law supplied the rule of decision so if you had a diversity case for example i taught case a product liability case something like that the expert opinion testimony even though state law governs the rule of but that's why i don't understand why the burden of proof in a federal court would follow the state law it seems to me would be under federal law because when a federal court and federal procedure cover there was a case glover v department of transportation which is a georgia court decision that concluded the sense of condemning must pay before taking private property for public use to condemn or has the burden of proving market value of the property taken i think that's what the court ended up saying in this case so i guess the question though is is pretty good proof necessarily part of the procedure as opposed to the substance or can it be part of this substantive law you know what i'm saying it's kind of a weird type of case because it's not really a state cause of action that you're in court on but measure and so it's kind of this weird little hybrid idea i guess there are two different ways that the burden of proof could be you have any case that has adeline's this issue or any support for the proposition either that the burden of proof is part of the substantive law of taking  imports the burden of proof standards you know what i mean i understand what you're saying i'm not saying i have a case that says  but the question the greater question becomes if you're talking about the cross appeal and the amount of the jury the jury awarded a verdict  t was not a problem i have with the cross appeal for you yes i don't understand what valuation evidence you submitted that would have supported this far  it seemed to me that the only valuation evidence that would support a judgment for taking was twenty four thousand and ninety six dollars  fifty cents and there was anything above that would have been totally speculative on the part of the jury it's my opinion the jury is no question the jury can consider all the witnesses testify just because sholes testified as the expert for sable trial mr sholes testified no question it was clear that he put on that document that the best use for that property was a subdivision or residential development that's what he calculation that they made from the evidence that existed there was no question how do you know later that question i mean to me that what the jury was considering  were concessions that he did not account for the possibility that last year wouldn't be able to construct a road you tell it has already easement he didn't include the value of the timber taken from the permanent easement and he didn't include any soil damage from the pipeline and so what it seems to me like the jury did hear is it just decided that that triangular area was not of any value at all if you couldn't have a row if it went over and because all of the problems all of the conditions i guess on the easement that that it was a very real possibility that you wouldn't be able to have a road and in any case it would be up to sable trail ultimately as to whether that would be so they just decided to give them the whole value of that property the problem is that i can't figure out how the value of that property matches up with the number that they gave under schultz's valuation of the property i know you said something about one point eight five and that's where i don't understand where that number came from because when i look at the numbers it looks like the prominent easement was one two a tinker's the tab arrangement with point seventy nine acres and the rest of the triangular area was four nine acres and i just the math doesn't add up to me that's the problem that i don't understand i think that the jury was trying to compensate for that read and look at the chart but the chart uses one point five is the number and i don't know where that number comes from i don't because the calculations don't work if you use the actual numbers  the you know the property in question that is if you used and i would think it would be the permanent amusement plus the triangular area that would have been part of a subdivision but for the fact that you might not our response brief to which no reply was filed none of those assignments has any merit to the reasons set forth in our response break with respect to the issue of the burden of proof on proving just compensation sable trail did take the position at the trial the federal standard of plaid and that the burden of proof was on the landowner judge my hand as you know from the record disagreed and instructed its able trail had the burden of for the burden of proof being a procedural issue and even the state's substantive law just compensation controlled i do believe it is procedural in nature for reasons that you and judge prior stated in your questions but moreover i don't think it matters in this case the question still remains was there evidence or inferences from evidence that would have supported a jury verdict on just compensation for anything other than the on contradicted evidence of sable trail and  purposes or numerous residential purposes other than the construction of the hells lawns recreation trails and cetera et cetera so plenty of large acre subdivisions have properties accompanying dwelling that are devoted to residential use and but here's the other point your honor the value of the timber that was removed was expressly testified to by craig gaynor a highly qualified timber requirement to obtain consent from a natural gas pipeline to cross a permanent easement with either a road or utility because it's subject to the approval of the pipeline renders property on the opposite side of the pipeline undeveloped both for residential purposes in that circumstance already existed with respect to mr lester because as you can see from plaintiff's exhibit twenty two dollars which is an aerial view of the entire track  forested white line all the way across the property diagonally which is associated with the sown at natural gas pipeline and that's the last acknowledged he would also have had to obtain so nets approv that is the reason it was supposedly on developable for his eventual purposes that circumstance already existed the other point i would make your honor is there was no testimony in this case that soil compaction existed and even if it did whether that would have any bearing on the value of the property most of this permanent easement went through wetlands and there's no suggestion that talk of passion would have made any difference in wetlands testimony was that mr lester could not have built a house  in the landowners response brief that somehow the jury found that six sixty four acres of property was well taken the numbers just don't add up even if four point seven nine acres was in the strangle in the south western portion of the acres were devalued much less valueless and the mosaic fertilizer taste which has been referenced earlier in the other argument made clear that there it was pure speculation for a land owner to testify that her property was not marketable simply because there was an allegation of contamination associated with a nearby factory she had no basis no experience no communications with a real estate specialist that would have supported a valueless conclusion so that evidence was disallowed like well as it would have been purely speculative on this jury to pick a number out of thin air and that property was diminished in value much less valueless and that's essentially the same raising the judge lan raged when he said the jury could have multiplied approximately six acres in that corner mr saltus testimony is fifteen thousand five hundred dollars an acre and came up with an approximation of the awar that calculation would be ninety three thousand dollars and then you would have the value for the permanent easement but that doesn't support one hundred and three thousand dollars because it essentially assumes the property was valuable and there was zero testimony to support that or in fact any diminution and of course what was so remarkable about the trial judge is that now all of the motion for judgment as a matter of law after the trial having taken it jury instruction on damages to the remainder that you have put up no evidence as to how there's been any damage he specifically admonished mr laster counsel does not necessarily mean anything i mean sometimes when you've had a chance to go back and think about the issues that you know having to do things right i think for a few moments on the bench you have a more considered view that is not particularly compelling to me personally well my response is that your honor would be all of his reasoning was correct at the time of the trial and there was no argument and damage and if you look at how he rationalized the possible finding the jury of damaged or made it simply doesn't mesh with the evidence he concluded that the jury could have concluded that that corner of the property was not developable for residential purposes and there's no evidence of that the only evidence on a point directly to the contrary even assuming you couldn't cross the easement with the utility or road simply no evidence it was not marketable and in fact he had said during the jury instructions that mr waters c argue with respect to the property's value if it was not residentially developable because there was no evidentiary basis to army ask you this mr cowper has anybody come up with an explanation your speculation is the only explanation you can you can tendre a theory i suppose as judge land attempted to do but the problem is if that was the bigger that doesn't really add up doesn't it doesn't add up and in any event the the predicates for that have top assessor and consistent with the evidence meaning they picked a number out of thin air which is exactly what he instructed they could not do so for all those reasons expert testified this trial the timber expert never saw any of the trees standing on the property he never even saw the stones on the property when he went out there to value way the timber value on this property it would have been clear cut and cleaned  and nothing was there for him to evaluate and then he formulated out of thin air both sides of what this might have been worth and he specifically said i didn't put any money in this for a pole temb timbers timber that had the highest value it's used for telephone poles so with pine trees that have that have grown straight and you told them off the property st to get the highest dollar for them the jury obviously and i'm i can't get in the head of specifically what the jury was thinking but it's clear they wanted to award to mr last that are based on what dana said told timber was worth some evidence or a basis there is could be to support what the jury awarded i can't find there's a four hundred and fourteen dollar entirely different well again it goes to the the jury's purview is to evaluate the veracity of these experts and to take from the expert whether it's our expert or sables expert what their testimony comparables he had had someone pull like tronic lee ok that being said he gave amounts for acreage and he gave amounts for how much that did that he thought the best use of this property would be a residential subdivision he also testified he tried to testify under cross that you could basically do whatever you could with the property but there's no question the evidence at trial was you were part clued it from doing things not the pipeline authorities think this natural gas pipeline high pressure pipeline would not it's too it's it's like saying a a dirt road is an interstate highway there's a huge huge difference between these two pints and the degree of the the computations even there ok they had another expert testified he was the engineer as to what you could do with this property i sable trail were allowed you to do permission and all these requirements as to the weight loads and things that would be restricted and what needed to be done to build with and if you put a strip for anything over it the date and specifically approved th you come in and tear it down and then replace it i think there's no question this jury looked to that four point seven acres that was part that was wedged in between that's what one area and th pipeline that cannot be crossed and said that property for residential development has been destroyed and they gave that value extrapolated from the evidence that sholto testif specifically per acre values own the property using the comparables that existed in the area there's specific evidence to come to that number it's not formulated out of thin air and the time has expired thank you very much