* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40563

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

4.27 ACRES OF LAND, Etc.; ET AL

Defendants

JACK HEMMENWAY; BRAD HEMMENWAY

Claimants-Appellants

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 1:05CV735

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PER CURIAM:*

In this condemnation action, Jack and Brad Hemmenway appeal the

district court’s delivery of a utility and roadway easement on Tract No. 1006E-7

to the United States Government. Appellants also argue that in calculating

compensation for the taking,the court erred by refusing to exclude the testimony

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-40563

2

of the Government’s expert, by finding that the roadway was not a separate

economic unit, and by denying their motion for reconsideration. We AFFIRM.

As an initial matter, Appellants fault the magistrate judge, before whom

the case was tried by consent, for ordering “possession” of the property when the

Government’s notice and motion sought to take an easement, which is a nonpossessory interest. However, the court’s use of the word “possession” to

describe the easement is without consequence. The Order for Delivery, signed

on December 9, 2005, granted possession “to the extent ofthe property described

in the [Government’s] motion.” The Government’s motion described a perpetual

road and utility easement. Appellants were therefore ordered to surrender the

easement the Government requested, and nothing more. 

Appellants also contend that the court abused its discretion by admitting

the testimony of the Government’s land-value expert, Burnell Cook. Appellants

assertthat Cook’s testimony is unreliable because Cook calculated the value and

determined the highest and best use of the entire parcel of land on which the

roadway is located, as opposed to separately evaluating the roadway. The

normal procedure for awarding compensation for an easement is to determine

the highest and best use of the entire acreage within the property lines of the

parenttract and then to calculate the difference between the market value ofthe

tract before and after the taking. United States v. 8.41 Acres of Land, 680 F.2d

388, 391 (5th Cir. 1982). Cook’s analysis is consistent with this approach. 

Appellants assert, however, that an exception to this general method of

calculating compensation applies in this case because the gravel roadway is a

“separate economic unit.” See id. at 393 (discussing separate economic units).

Three factors are particularly helpful in ascertaining whether property taken is
No. 07-40563

1 Appellants also argue that Cook’s testimony is unreliable because he failed to

appraise the property as of the date of the taking. Because this basis for objection is different

from the theory raised at trial, “plain error” is the standard of review. See United States v.

Jimenez, 256 F.3d 330, 340 (5th Cir. 2001) (holding that “where the theory underlying the

basis for an appeal is different from the one raised in the lower court, ‘plain error’ should be

the standard of review”); Crawford v. Falcon Drilling Co., 131 F.3d 1120, 1123 (5th Cir. 1997)

(reviewing unpreserved error in a civil case using the plain-error standard). To prevail under

plain error review, Appellants must demonstrate that the admission of Cook’s testimony

affected their substantial rights or “seriously affected the fairness, integrity, or public

reputationofthe judicial proceeding.”See United States v. Longoria, 298 F.3d 367, 371 (5th Cir.

2002). Because Appellants have shown neither, we reject this argument.

3

part of a single larger tract: physical contiguity, unity of ownership, and unity

of use. Id. 

In this case, the district court carefully examined the three factors and

concluded that the tract at issue was not separate from the parent tract. See id.

The issue of unity or separateness of a tractis a question of fact, which this court

will reverse only for clear error. See id. at 393. After reviewing the record and

considering the parties’ arguments, we conclude that this factual finding is not

clearly erroneous. Because the expert’s calculations complied with the normal

procedure for calculating damages and the district court did not clearly err in

finding thatthe exception for separate tracts is inapplicable, it was not an abuse

of discretion for the court to admit the testimony of the Government’s expert.1

Finally, Appellants argue that the court “continued to ignore the evidence

and refused to vacate its erroneous findings of fact” when it denied their

objections to the decision and their motion for reconsideration. We disagree.

The court’s four-page order carefully addresses the parties’ arguments and

reexamines the evidence. Moreover, the findings of fact the court declined to

vacate are not clearly erroneous. 

The judgment of the district court is AFFIRMED.