NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ Nos. 17-2096 & 17-3312

______________ COLUMBIA GAS TRANSMISSION, LLC

v. AN EASEMENT TO CONS TRUCT OPERATE AND MAINTAIN A 20 INCH GA S TRANSMISSION PIPELINE

ACROSS PROPERTIES IN WASHINGTON COUNTY, PENNSYLVANIA, OWNED BY ANGELO QUARTURE; JESSICA QUARTURE, Parcel ID 520-015-00-00-0024-04 and 520-015-01-02-0019 -00; SAMUEL KRAEER; LORRAINE KRAEER, Parcel ID 600-002-00-00-0012-00; WILLIAM E. GRIFFITH, JR .; PAMELA GRIFFITH, Parcel ID 600-00 1-01-02-004-03 and 600-001-01-02-0004-02; PAUL CAMPBELL; LISA CAMPBELL, Parcel ID 100-025-00-00-0001-01; PATRICK MCLAUGHLIN; AN ASTASIA MCLAUGHLIN, Parcel ID 170-006-00-00-0004 -001, 100-024-00-00-0003-00, 360-011-00-02-0048-00 and 170-006-00-00-0006-00; BRUCE COEN; JANICE COEN, Parcel ID 600-007-00-00-0045-00 and 600-007-00-00-0044-00; NANCY N. NERNBERG; CAROL SOVCHEN, Parcel ID 600-007-00-00-0054-00

and 600-007-00-00-0056- 00; *TERRY KUBACKA, Parcel ID 600-007-00-00- 0056-00; CARA DOBBIN, Parcel ID 600-007-02-00-0003-13; DOUGLAS BURIG; REBECCA BURIG, Parcel ID 600-004-02-00-0003-01 and

600-004-02-00-0003-06; EDWARD KOCI; LOIS KOCI, Parcel ID 600-002-00-00-0010-0 2 and 600-002-00-00-0010-06; GREGORY KLINE; ANN KLINE, Parc el ID 600-007-00-00-0001-11; DAVID PODOLINSKY; KRISTIN PODOLINSKY, Parcel ID 600-004-00-00-0001-10; ANGELO FALCONI; PHILLIP FALCONI, Parcel ID 520-015-00-00-0026-00 and 170-006-00-00-0013-00; ED WARD C. MORASCYZK, Trustee of the Angelo Falconi Irrevocable Trust2 Parcel ID 600-001-00-00-0047-0 0 and 600-001-00-00-0047-01; PRANCING HORSE FARMS, Parcel ID 300-001-00-00-0046-00; AMANDA JEAN YETTER; JAMES YETTER, Parcel ID 520-011-00-00-0003-13; STEPHAN STAYDUHAR; KATHERINE STAYDUHA R, Parcel ID 520-001-00-00-0003-02; UNKNOWN PERSONS AND INTERESTED PARTIES

Nancy Nernberg, Carol Sovchen, *Terry Kubacka, Appellants *(Dismissed pursuant to Clerk’s Order of 12/28/17)

______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. No. 2:16-cv-01243) District Judge: Hon. Mark A. Kearney

______________ Submitted under Third Circ uit L.A.R. 34.1(a) July 12, 2018

______________ Before: SHWARTZ, ROTH, and RENDELL, Circuit Judges. (Filed: August 9, 2018)

______________ OPINION *

______________ SHWARTZ, Circuit Judge. Nancy Nernberg, Carol Sovchen, a nd Terry Kubacka (collectively, the “Landowners”) appeal from a jury verdict aw arding them $47,000 as just compensation

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.3 for the condemnation of an easement for a na tural gas pipeline across their property (the “Property”) by Columbia Gas Transmission, LLC (“Columbia”). For the reasons set forth below, we will affirm.
I Columbia is in the process of replacing st eel pipelines near th e Pennsylvania-West Virginia border to modernize its existing infr astructure. Columbia acquired the rights-ofway across most of the properties affected by the project, and in 2016, it filed a condemnation action in the United States Dist rict Court for the Western District of Pennsylvania, pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h), and Federal Rule of Civil Procedure 71.1, to condemn additional property necessa ry to complete the project. Columbia condemned the rights- of-way across twenty-nine properties and settled with most of the property owners. Columbia and the Landowners agreed that Columbia would be granted access to the Propert y to begin construction of the pipeline, and Columbia condemned a permanent easement of 1.75 acr es and temporary easements of 2.68 acres across the Landowners’ 56.8-acre Property, bu t the parties went to trial over the amount of just compensation. To assist the jury in determining the im pact of the easement on the Property’s value, Columbia called two experts who testif ied that the easement decreased its value by $31,000. 1 The Landowners testified that they had no current plan s to develop the Property and sought to con tinue using it for outdoor recreation, but they nonetheless

1 This amount consisted of the diminution in fair market value of the property and the cost to replant trees in the temporary easements.4 sought to offer expert testim ony regarding the value of the lots that could be built and sold on the Property if it were subdivided. The District Court granted Columbia’s motion to exclude the testimony regarding lost pr ofits from such development because the Landowners admitted they had no plans or intent to de velop the Property. The Landowners were permitted, however, to tes tify that the partial condemnation reduced the value of the Property by half because it would cut off 40 acres that could be used for residential development. The Landowners’ expert real estate apprai ser testified that if the easement could not be crossed by paved roads, the value of the Property following condemnation would be $240,000, but the expert did not testify as to the value of the Property before condemnation. Columbia responded by pr esenting evidence that development near pipelines is common, that Columbia ha s a custom and practice of accommodating requests for paved roads to cross its pipelines, and that Columbia was willing to permit a crossing of the easement , but that the Landowners never requested such permission. One Columbia witness testified that in her career with the company handling hundreds of requests, she had never seen such a request denied. The jury returned a verdict of $47,000 for Appellants consisti ng of $23,000 for the diminution in fair market value of the Prop erty and $24,000 for the costs for replacing and replanting the trees removed from it. 2 The Landowners appeal.

2 The judgment was subsequently amended to include interest, for a total final judgment of $48,622.47.5 II 3
A The Landowners argue the District Cour t erred in excluding expert testimony regarding a valuation of the Property based on its future profita bility from residential development. The admissibility of expert te stimony is committed to the discretion of the trial court, and we review its ruling for abuse of discretion. United States v. 68.94 Acres of Land, 918 F.2d 389, 392 (3d Cir. 1990) (citing Linkst rom v. Golden T. Farms, 883 F.2d 269, 269 (3d Cir. 1989)). In condemnation actions under the Natural Gas Act, the landowner has the burden of proving just compensation owed for the condemned property. 4 See United States v. 33.92356 Acres of Land, 585 F.3d 1, 7 (1st Cir. 2009); 68.94 Acres, 918 F.2d at 392. Just compensation is measured by “the fair ma rket value of the property on the date it is appropriated.” Kirby Forest Indus., Inc. v. United States , 467 U.S. 1, 9-10 (1984) (citations and internal quotation marks omitte d). Fair market value is determined by considering the property’s “highest and be st use,” which means that the landowners whose property is condemned must “receive th e value of the highest and best use for which the property is adaptable in the reasona bly near future from the vantage point of

3 The District Court had jurisdiction unde r 15 U.S.C. §§ 717 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291. 4 Federal law governs the measure of just compensation owed to landowners in condemnation actions under the Natural Gas Act. See United States v. Certain Parcels of Land, 144 F.2d 626, 628-30 (3d Cir. 1944) (c iting United States v. Miller, 317 U.S. 369, 380 (1943)).6 the date of the taking.” 68.94 Acres, 918 F.2d at 393 (c iting Olson v. United States, 292 U.S. 246, 255 (1934)). The “guiding principle” of just compensation is that the property owner “must be made whole but is not entitled to more.” United States v. 6.45 Acres of Land, 409 F.3d 139, 145 n.11 (3d Cir. 2005). To determine just compen sation in a partial condemnation case such as this one, the landowner must establish the “differenc e between the market value of the entire holding immediately before the taking an d the remaining market value immediately thereafter of the portion of property rights not taken.” 68.94 Acres, 91 8 F.2d at 393 n.3. A landowner may establish just compensa tion through expert testimony as to the property’s value before and after the taking, but “mere speculative uses of the property should not be entertained by the factfinder.” Id. at 393. For expert testimony to be admissible un der Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993), the proffered witness must (1) be qualified, (2 ) testify about matters requiring scientific, technical, or specialized knowledge, and (3) a ssist the trier of fact. United States v. Schiff, 602 F.3d 152, 172 (3d Cir. 2010). To assi st the trier of fact , the expert opinion must “fit,” i.e., it must be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. at 173 (quoting Daubert, 509 U.S. at 591). Here, the District Court properly exer cised its discretion in excluding the Landowners’ proffered expert testimony regardin g the future profitability of the Property. The Landowners sought to intr oduce expert testimony concerning the profits they could make if they subdivided the Property and sold th e individual lots or sold the whole lot for7 residential development, even though they had no plans or intent to develop any portion of the Property. Because the Landowners ha d no intention to de velop the Property and had taken no meaningful steps in that dire ction, any projections regarding subdivision and future sales to be derived therefrom woul d be speculative. 68.94 Acres, 918 F.2d at 393. The proffered testimony thus failed to f it the facts of the case, and therefore, the District Court properly exercise d its discretion in excluding it. 5
B The Landowners next argue the District Court erred in permitting Columbia to submit evidence regarding its custom and practice of accommodating development, including crossings, over its pipeline easement s. The Landowners relatedly assert the District Court improperly instructed the jury to assume Columbia would fully utilize all rights to the easement but then instructed the jury it coul d consider evidence that Columbia had in the past allowed crossings ov er its pipeline easements. Specifically, at trial, the Court inst ructed the jury to assume Columbia Gas will make the fulle st use of the easement taken. You must assume the use of the easement by Columbia Gas will be in a manner as injurious to the lan downers’ remaining rights in the property as the easement rights taken by Columbia Gas will lawfully permit. But Columbia Gas has a defense for wh ich it bears the burden of proof of showing by a preponderance of the eviden ce that it has granted permission for landowners and would grant permi ssion to these landowners to use the easement consistent with Columbia Gas’s approval.

5 To the extent the Landowners challenge Columbia’s expert’s testimony, we find their challenge without merit.8 App. 1247. The Landowners ob jected to the charge, arguing that the Court, not the jury, had to decide whether waiving rights to th e easement was legally permitted. The Court responded: No. Here’s why not . . . because whethe r it’s legally permissible in this case depends on whether the jury believed that Columbia Gas routinely or always [] offered to give the right to cross over the easement. Your entire case seems to be I can’t cr oss over the easement. Columbia Gas has the right to say yes, you can. And the jury has to decide who to believe there. Just because the legal document says it doesn’t mean Co lumbia Gas can’t waive it. Columbia Gas is sa ying we’re waiving it. . . . App. 980. The District Court rejected the Landowners’ argument that interpreting a legal document concerning Columbia’s full rights to the easement was an issue for the Court to decide. It concluded that the issue was whet her Columbia could have waived that right, which it properly characterized as “an evidentiary dispute c oncerning whether the jury thinks there’s a waiver” of Columbia’s right to bar use of the easement. App. 980. On appeal, the Landowners do not challenge the su fficiency of the evid ence regarding the jury’s verdict but rather argue that it was im proper for the jury to speculate about whether Columbia would waive its right to full use of the easement and allow development over it, and that such speculation may have impacted its verdict. The Landowners also assert that the Court’s instructions were errone ous because Columbia’s position concerning the use of the easement was unambiguous. “We review the District Court’s deci sion to admit evidence for abuse of discretion,” United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001), and “we exercise9 plenary review to determine whether jury in structions misstated the applicable law,” Egan v. Delaware River Port Auth., 851 F. 3d 263, 269 (3d Cir. 20 17) (citation omitted), “but in the absence of a misstatement we revi ew for abuse of discretion,” Cooper Distrib. Co. v. Amana Refrigeration, In c., 180 F.3d 542, 549 (3d Ci r. 1999). Here, the District Court properly exercised its discretion to admit evidence of Columbia’s custom and practice of accommodating crossings over its pipe lines and to instruct the jury regarding the same. The evidence was relevant to calculating ju st compensation because the Landowners’ expert testified that if the ea sement could not be cr ossed by paved roads, the value of the Property fo llowing condemnation would be $2 40,000. It was therefore appropriate for Columbia to respond with eviden ce that it had a custom and practice of accommodating requests for crossings over its pipelines but that the Landowners had never made such a request. Moreover, one of Columbia’s witne sses testified that Columbia was willing to accommodate a crossing of th e easement on the Property—and in fact, the witness, who had handled hundreds of requests in her career at Columbia, had never seen a request for accommodation de nied—but that to provide such an accommodation, the Landowners wo uld need to ask for it. T hus, evidence of Columbia’s custom and practice was relevant to an issu e in dispute, namely, the impact of the easement on the ability to use and enjoy the Property, which in tu rn affected just compensation, an issue square ly within the jury’s prov ince. Fed. R. Civ. P. 71.1(h)(1)(B). Moreover, the instructions were proper becaus e they made clear to the jury that, in deciding just compensation, it could consider the fact that Columbia had a history of10 waiving its rights to full use over its pi peline easements and accommodating a property owner’s request to develop the area in or around the pipe line, because such accommodations would affect just compensa tion owed. The instructions were not contradictory and, in light of the evidence Co lumbia presented, did not lead the jury to speculate as to whether Colu mbia would grant the Landowners access to the easement. Therefore, the District Court properly exerci sed its discretion in submitting this issue to the jury and instructin g the jury about it.
III For the foregoing reasons, we will affirm.