and finally this morning it's number seventeen twenty one seventy two sears versus united states agricultural parcels by the hiking and biking trail the factual issue for the court to determine at trial was how to measure in how to calculate of those demons years and and that is really the only issue on this appeal the appraisers in that case were all instructed to do evil for an after appraisal the before is an appraisal of the entire larger as you move to your honor do not affect the rest of the remainder but the test used to determine the diminishing in value of the entire remainder from having a reform so the whole concept of market value is your honor the fact of the matter is is that the first mistake is a mistake of fact where he created a fact that is nowhere in the record that the area impacted by point rose the last forty or forty five percent diminish in value the little plant that however to the area impacted by point zero in that is in essence that a mistake of a mixed question of fact and law because the test is to try to determine the diminishment value of the entire remain in so and then the third mistake years well so assuming i want to buy a piece of property and i know that some of it is in fact right knowing that the farm is severed and that has to be measured in the marketplace it is a question of market value so in all the cases that have ever determine this a willing buyer would not come in and say value is on a per acre basis for the remainder joe in that case what he does is it takes an area of major movement and sees how much area is impacted by the point rose and compares that to  the government's evidence which was actually evidence of what i'll call consequential damages it was the increased costs associated with the production it was the last  going to pay for the entire remainder not how much increase cost and we now have that's what i mean you know if if i buy a house and it it is a mess and needs to be completely renovated or test is as well established in the law not what the consequential damages are or not what the increase costs are if the test is very simple what would a really buyer pay for the totality of the that everything was well i'm trying to say your honor is the entire remainder is impacted from a market value standpoint by the existence of point of corn rows of the whole property all there is no evidence whatsoever that an increased cost of forming a particular acre reduces the land value by any percentage no expert testified to that there is no evidence in the record anywhere so what he did was he created a fact th fore every forty five percent diminish applied it not to the entire remainder as he was required to do under the foreign after analysis and applied it just to the area of the area impacted by point rows and only doing this for decades and then he created a fact that was outside that range and applied it only to the area impacted but we rose so i believe there was a mistake of fact there is a mistake a very mixed question of all for purposes affirming and that there is not an overall market value that has to be taken into account well the reason the united states picks for its concluded that there was no market value difference for the includes both the land actually taken by the trail and any diminution in the value of the remaining using comprehensive sets of data and numerous different and now sees united states experts were able to discern any regular nice difference in market value determined that was extremely minim willing buyer would be likely to discount the price he was willing to pay for this or that he because of the presence of the point rose but and what the but the but the market value i mean you know i haven't you know a lot of farmers and they want to be able to for as much area as they can there's no question they can farm every paper of these parts of clusters only he's only all of them only experts agree that the difference is in the efficiency and that turning field clusters and and clusters that include rows and the difference is because of those inefficiencies and therefore he computed it using some information from costs attributable to the double planting and the lost productivity of those areas where the mechanized equipment would be less efficiently operated that is similar in fact to th the severance damages that were computed in the georgia pacific case which i always says that any number of different means can be and can be employee to measure seventy just there is no rule of law that says you have to fifty two percent it also took into a cure that the two things that mr matthews results were wide ranging and that applying his one to one ratio would effectively diminish the value of the remainder to less than zero which is both valid of the legal principle that all and has value in and supported by the historical record so there's no question that the district court acted within its discretion in computing ago were point rules also existed in point rose were determined that particular case the government appealed the reclamation costs another point rose and so this is actually the first time it's not the first case where point a court ever accepted his particular methodology no that's what i try to say your honor is that it was tried in those three cases that were consolidated for tribe and when it came here the government did not appeal that result and so the court did not have to years and over the decades that's where he's landed on one don't want to as being the most logical relationship the government of i don't believe for it they do this they understand that if you look at their brief for example they thought about this in percentages that were included anywhere in the record they talked about the percentage decline for linear feet which is not correct and i think that the fact of the matter is is that they've mr matthews accumulation is designed to determine the diminish an invalid to the entire remainder as opposed to just the area impacted by point rose which is the test i believe the supreme court adopted back in eighty ninety seven is applied ever since