CHESHIRE HUNT, INC. v. United States

In the United States Court of Federal Claims

No. 18-111

Filed: August 19, 2025

________________________________________

)

CHESHIRE HUNT, INC., et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

________________________________________ )

Mark F. Hearne, II, True North Law Group, LLC, St. Louis, MO, for Plaintiffs. Charles J.

Cooper, Cooper & Kirk, PLLC, Washington, DC, with whom were Michael W. Kirk and Megan

M. Wold, of counsel.

Christopher M. Chellis, Trial Attorney, United States Department of Justice, Environment &

Natural Resources Division, Natural Resources Section, for Defendant, with whom were Daniel

J. Martin, Michael K. Robertson, Young A. Kang, Trial Attorneys, and Todd Kim, Assistant

Attorney General, Environment and Natural Resources Division.

OPINION AND ORDER

MEYERS, Judge.

This case deals with a surprisingly uncommon occurrence—a taking of property in the

middle of a series of commercial transactions conveying multiple parcels of land from one real

estate developer to another. Wynnstay Hunt, Inc. owned roughly 64 acres of land in Florida that

could be developed for residential use. If the Government took the rail corridor splitting that

property, Wynnstay Hunt would have a claim under the Fifth Amendment for a taking that

diminished the value of the entire 64 acres. Rather than develop the land itself, however,

Wynnstay Hunt chose to sell this land to D.R. Horton, Inc. for it to develop. In a series of

contracts, they agreed that Wynnstay Hunt would convey the land in three parcels with separate

closings for each parcel. It is also not disputed that after these conveyances, D.R. Horton would

have a taking claim for the diminished value of the entire 64 acres. The wrinkle here is that the

taking of the rail corridor happened to fall in the middle of these transactions when D.R. Horton

held fee title to one parcel and beneficial title to the other two, and Wynnstay Hunt held legal

title to two parcels as trustee for D.R. Horton.

In this circumstance, does anyone have a claim that the Government took land and

diminished the value of the entire 64 acres, or do Wynnstay Hunt and D.R. Horton only have

claims regarding two of the three parcels (one is not adjacent to the rail corridor)? This question

gets to the root of the difference between the parties’ appraisers because in this case the whole is

greater than the sum of its parts—one large development could hold more houses than two

smaller developments separated by the recreational trail.

To answer this question, the court considers three unities—physical unity, unity of use,

and unity of ownership. This case turns on the unity of ownership and whether D.R. Horton’s

ownership of one parcel and beneficial ownership of the two others establish common ownership

sufficient to allow it to recover for the diminution of the value of all three parcels together.

While older cases conclude that only the same ownership (e.g., fee simple) by the same person or

entity would suffice, modern cases and treatises no longer apply such a rigid framework.

Instead, they focus on the economic realities, considering things like whether there is a single

decisionmaker for the future of the property. Because one party—D.R. Horton—controlled the

future of all three parcels, the unity of ownership is satisfied here, and the court will consider the

larger parcel (i.e., the entire 64-acre combined parcel) when determining just compensation.

Thus, the court DENIES the Government’s motion for partial summary judgment and GRANTS

Wynnstay Hunt and D.R. Horton’s cross motion for partial summary judgment.

I. Background

A. The Railroad and the A8, A9, and B9 Parcels

This court has explained the history of the land underlying the rail corridor at issue and

does not repeat it here. See generally Cheshire Hunt, Inc. v. United States, 158 Fed. Cl. 101

(2022). “In 1900, much of what is now Sarasota County, Florida was owned by Bertha Palmer

and her family members,” including her brother, Adrian Honore. Id. at 102. Mr. Honore granted

the railroad an easement across his land. Id.

These cross-motions concern three parcels in Sarasota County that the Sarasota County

Property Appraiser identifies as A8, A9, and B9. The rail corridor splits A9 and B9, and A8 lies

west of A9:

2

ECF No. 243-1 at Def.’s Ex. 1. 1 Hugh Culverhouse, Sr. acquired “a large amount” of property,

including A8, A9, and B9, in the 1970s. See ECF No. 246 at 2. In 2005, Mr. Culverhouse

conveyed the three parcels (and other property) to Wynnstay Hunt. ECF No. 243-1 at Def.’s Ex.

2.

1

Because the parties’ exhibits span multiple docket entries, the court cites the docket number,

the exhibit number, and the paragraph or page number within the exhibit, where applicable.

3

B. The Sales Agreements and the Initial Closing

Rather than develop the land itself, Wynnstay Hunt chose to sell it to D.R. Horton to

develop. In 2015, Wynnstay Hunt agreed to sell D.R. Horton A8 and A9 in the “A8-A9 sales

agreement.” ECF No. 243-1 at Def.’s Ex. 3. The A8-A9 sales agreement provided that

Wynnstay Hunt and D.R. Horton would close on two parcels comprising land from A8 and A9,

A9/parcel 1 at an initial closing and A8/parcel 2 at a final closing. 2 Id. ¶ 4.1. At each closing,

Wynnstay Hunt would “convey marketable fee simple title to” D.R. Horton and “deliver

exclusive possession of” A9/parcel 1 and A8/parcel 2, respectively. Id. ¶ 4.2.

The A8-A9 sales agreement required Wynnstay Hunt to maintain marketable fee simple

title with no additional encumbrances other than those the agreement specifically allowed. Id.

¶¶ 5.1(f)–(g), 8.5, 11. Until the deeds were recorded, the A8-A9 sales agreement allocated the

risk of loss of the two parcels to Wynnstay Hunt and gave D.R. Horton the ability to terminate

the agreement if the parcels were damaged or destroyed and not restored to substantially similar

condition. Id. ¶ 6.9. And the A8-A9 sales agreement granted D.R. Horton the right to specific

performance to compel Wynnstay Hunt to convey the parcels. Id. ¶ 9.2.

Finally, the A8-A9 sales agreement reserved with Wynnstay Hunt the right to “any

award, payment or compensation . . . relating to a condemnation, taking or other disposition of

the Seminal Gulf Railroad.” Id. ¶ 4.2. This reservation applied “whether such disposition,

condemnation or taking occurs prior to or after Closing.” Id. ¶ 7. Although D.R. Horton would

“not accept any award, payment or compensation,” the original sales agreement gave D.R.

Horton “the unilateral right to negotiate all aspects and terms pertaining to the Railroad

Disposition” if “the Railroad Disposition occurs after Closing.” Id.

Wynnstay Hunt conveyed A9/parcel 1 to D.R. Horton on November 18, 2016. ECF No.

243-2 at Def.’s Ex. 8. Like the A8-A9 sales agreement, the A9/parcel 1 deed reserves Wynnstay

Hunt’s right to compensation from a taking action involving the railroad corridor (the

“reservation clause”):

Grantor does hereby reserve unto itself and its successors and

assigns, the exclusive right to receive any award, payment or

compensation from any third party relating to a condemnation,

taking or other disposition of the Seminal Gulf Railroad, lying to

2

The A8-A9 sales agreement refers to the property transferred at the initial closing as “Parcel 1”

and the property transferred at the final closing as “Parcel 2.” ECF No. 243-1 at Def.’s Ex. 3

¶ 4.1. The parties disagree about whether the metes and bounds of parcels 1 and 2 correspond to

those of A8 and A9. ECF No. 243 at 2–7; ECF No. 246 at 4 n.4. Given that the acreage of

parcel 1 does not match the acreage of A9, and that the acreage of parcel 2 does not match A8,

ECF No. 246 at 4 n.4; ECF No. 246-9, it appears parcels 1 and 2 do not correspond exactly to A9

and A8. Because the parties agree the distinction does not make a difference to the resolution of

these cross-motions, ECF No. 254 at 7:2–6; id. at 40:7–11, the court does not resolve this

dispute. Because the Government refers to the parcels as A9 and A8 and Plaintiffs refer to them

as parcel 1 and parcel 2, the court generally refers to them as “A9/parcel 1” and “A8/parcel 2.”

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the East of and adjacent to the Real Property, for the purpose of

extending the existing Legacy Trail.

Id. at 1. On the same date as the initial closing on A9/parcel 1, Wynnstay Hunt granted D.R.

Horton easements across A8/parcel 2. ECF No. 243-4 at Def.’s Ex. 24. These easements

allowed D.R. Horton access to A8/parcel 2 and the ability to “construct, install and utilize certain

utilities” and “certain drainage improvements and facilities” on A8/parcel 2 to serve the

development of A9/parcel 1. Id. ¶¶ 2–5.

Wynnstay Hunt and D.R. Horton next executed the sales agreement for B9, the “B9 sales

agreement,” on January 20, 2017. ECF No. 243-2 at Def.’s Ex. 9. Unlike the A8-A9 sales

agreement, the B9 sales agreement only provides for a single closing. Id. ¶ 4.1. Other than the

property descriptions and the single closing, the terms of the B9 sales agreement are materially

the same as the terms of the A8-A9 sales agreement. Compare ECF No. 243-1 at Def.’s Ex. 3,

with ECF No. 243-2 at Def.’s Ex. 9.

C. The NITU and the Subsequent Closings

On December 5, 2017, the Surface Transportation Board (“STB”) issued the Notice of

Interim Trail Use or Abandonment (“NITU”) that brought about this case. ECF No. 243-3 at

Def.’s Ex. 18; see also Cheshire Hunt, 158 Fed. Cl. at 103. The railroad corridor affected by the

NITU runs between A9/parcel 1 and B9:

ECF No. 246-9 Ex. A.

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Wynnstay Hunt and D.R. Horton continued to discuss the terms of their two sales

agreements following the NITU. 3 On February 22, 2018, they amended the A8-A9 sales

agreement provisions governing Wynnstay Hunt’s reservation of the right to compensation for

the “Railroad Disposition.” ECF No. 243-2 at Def.’s Ex. 12 ¶ 2. The amended provision gave

Wynnstay Hunt the “unilateral right to negotiate all aspects and terms pertaining to the Railroad

Disposition,” even if “the Railroad Disposition occurs after Closing.” Id.

On May 22, 2018, Wynnstay Hunt conveyed A8/parcel 2 to D.R. Horton. ECF No. 243-

4 at Def.’s Ex. 20. The A8/parcel 2 deed includes the same reservation clause as the A9/parcel 1

deed. Id. at 1.

On August 3, 2018, D.R. Horton agreed to be a party to this action in an amendment to

the A8-A9 sales agreement. ECF No. 243-3 at Def.’s Ex. 13. On the same day, Wynnstay Hunt

and D.R. Horton amended the B9 sales agreement to “acknowledge and agree that [D.R. Horton]

shall not be required to be a party to any litigation with respect to the Railroad Disposition and/or

Railroad Condemnation Remuneration,” but D.R. Horton would still “remit to [Wynnstay Hunt]

any and all awards, payments, and/or compensation received by [D.R. Horton] in connection

with the Railroad Disposition and/or Railroad Condemnation Renumeration.” ECF No. 243-3 at

Def.’s Ex. 16 ¶ 2. Three days later, Plaintiffs filed their second amended complaint, adding D.R.

Horton as a plaintiff. ECF No. 14.

On February 28, 2019, Wynnstay Hunt conveyed B9 to Forestar (USA) Real Estate

Group Inc., as D.R. Horton’s assignee. ECF No. 243-4 at Def.’s Exs. 21–22. The deed for B9

includes materially the same reservation clause as the A8/parcel 2 and A9/parcel 1 deeds. ECF

No. 243-4 at Def.’s Ex. 21 at 1.

II. Standard of Review

Under Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”),

“[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a).

The movant has the initial burden to show that there is no genuine dispute of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A “genuine” dispute of material fact exists

where “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). And a “material” fact is one “that might affect the

outcome of the suit under the governing law,” as opposed to “disputes that are irrelevant or

unnecessary.” Id.

If the movant meets its initial burden, the burden shifts to the nonmovant to show a

genuine dispute of a material fact. Id. at 256–57. The nonmovant can do this by “citing to

particular parts of materials in the record” or by “showing that the materials cited do not

establish the absence . . . of a genuine dispute, or that an adverse party cannot produce

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Wynnstay Hunt and D.R. Horton amended the A8-A9 sales agreement six times. ECF No. 243-

1 at Def.’s Exs. 4–5; ECF No. 243-2 at Def.’s Exs. 10–12; ECF No. 243-3 at Def.’s Ex. 13.

Because the first four amendments are not material to the cross-motions, the court addresses only

the last two.

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admissible evidence to support the fact.” RCFC 56(c)(1). “By its very terms, this standard

provides that the mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48. And while “[t]he

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his

favor[,]” id. at 255, the nonmovant’s evidence must be “significantly probative” and more than

“merely colorable” to defeat summary judgment, id. at 249–50. Further, “mere denials or

conclusory statements are not sufficient” to defeat a summary judgment motion. Mingus

Constructors, Inc. v. United States, 812 F.2d 1387, 1390–91 (Fed. Cir. 1987) (citing Barmag

Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984)). “The

fact that both the parties have moved for summary judgment does not mean that the court must

grant summary judgment to one party or the other.” Bubble Room, Inc. v. United States, 159

F.3d 553, 561 (Fed. Cir. 1998). Instead, “the court must evaluate each motion on its own merits”

and “view the evidence in favor of the nonmoving party.” Id.

III. Discussion

In this rails-to-trails action, “there is no dispute that the . . . NITU took property

belonging to private property owners and that the government must pay ‘just compensation.’”

ECF No. 246 at 6. Nor do the parties dispute that D.R. Horton and Wynnstay Hunt owned

property adjacent to the railroad corridor on the date that the STB issued the NITU. See ECF

No. 243 at 17. The parties dispute whether A8/parcel 2, A9/parcel 1, and B9 constitute a single

parcel for damages purposes or three parcels.

Just compensation “means the full and perfect equivalent in money of the property

taken,” which is also called the “market value” of the property taken. United States v. Miller,

317 U.S. 369, 373–74 (1943); see also Kirby Forest Indus. Inc. v. United States, 467 U.S. 1, 10

(1984) (“‘Just compensation[]’ . . . means . . . the fair market value of the property on the date it

is appropriated.” (citation omitted)). The market value of the property “is what a willing buyer

would pay . . . to a willing seller.” Miller, 317 U.S. at 374.

To capture the full market value, just compensation for some taking claims include

“severance damage[s].” Id. at 376. Severance damages arise when the taking of property that is

part of a larger parcel reduces the value of the remaining parcel. Id. (“If only a portion of a

single tract is taken the owner’s compensation for that taking includes any element of value

arising out of the relation of the part taken to the entire tract.”); United States v. Grizzard, 219

U.S. 180, 183 (1911) (“Whenever there has been an actual physical taking of a part of a distinct

tract of land, the compensation to be awarded includes not only the market value of that part of

the tract appropriated, but the damage to the remainder resulting from that taking . . . .”);

Bauman v. Ross, 167 U.S. 548, 574 (1897) (“[W]hen part only of a parcel of land is taken . . . ,

the value of that part is not the sole measure of the compensation . . . ; but the . . . injury . . . to

the part not taken is also to be considered.”). When the property taken “is an easement, the

‘conventional’ method of valuation” of severance damages “is the ‘before-and-after’ method,

i.e., ‘the difference between the value of the [parcel] before and after the Government’s easement

was imposed.’” Otay Mesa Prop., L.P. v. United States, 670 F.3d 1358, 1364 (Fed. Cir. 2012)

(quoting United States v. Va. Elec. & Power Co., 365 U.S. 624, 632 (1961)); see Rasmuson v.

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United States, 807 F.3d 1343, 1345 (Fed. Cir. 2015) (applying the “before-and-after” method in

a rails-to-trails case).

A. A8/parcel 2, A9/parcel 1, and B9 collectively form the larger parcel for

valuation.

To determine the severance damages owed in this case, the court must first determine the

affected parcel (what cases often refer to as the “larger” parcel) that was diminished by the

taking. This is the crux of the cross-motions. The Government contends just compensation

should be awarded separately to D.R. Horton for A9/parcel 1 and to Wynnstay Hunt for B9, and

neither Plaintiff should receive damages for A8/parcel 2. ECF No. 243 at 15–20. Plaintiffs

argue A8/parcel 2, A9/parcel 1, and B9 should be valued together as a single parcel for the

purposes of determining just compensation. ECF No. 246 at 6–13.

1. Plaintiffs alleged a taking regarding A8/parcel 2.

To begin, the Government contends neither Plaintiff should receive just compensation for

A8/parcel 2 because it “was not a part of Plaintiffs’ allegations” in their complaint. ECF No. 243

at 9, 15–16. Not so. “In pleading a claim for just compensation under the Fifth Amendment of

the United States Constitution, a party must identify the specific property interest alleged to have

been taken by the United States.” RCFC 9(i). Rule 9(i), however, does not impose a heightened

pleading standard. Rather, the “notice pleading standards” apply, and “a basic statement of the

property interests at issue is enough [to] state a claim.” United Affiliates Corp. v. United States,

143 Fed. Cl. 257, 263 (2019); see also Schell & Kampeter, Inc. v. United States, 159 Fed. Cl.

829, 832 (2022) (“RCFC 9(i) simply reflects the . . . analysis that this [c]ourt will conduct when

[it] turn[s] to the merits to determine whether a compensable taking has occurred.”).

The second amended complaint relies in part on the 2005 deed that granted Wynnstay

Hunt title to A8, A9, and B9. ECF No. 14 at 14, ¶ 11. In fact, Plaintiffs attached this deed to

their complaint as an exhibit. ECF No. 14-2 at Pls.’ Ex. 16. By including the deed to all three

parcels in their complaint, Plaintiffs sufficiently put the Government on notice that they were

bringing claims for just compensation for all three. It is also difficult to accept the Government’s

argument that Plaintiffs failed to include any claim for A8/parcel 2 in the second amended

complaint given that its own appraiser included the combined area of A8/parcel 2 and A9/parcel

1 in his appraisal report. E.g., ECF No. 246-13 at 6, 24, 29, 44. The inclusion of both A8/parcel

2 and A9/parcel 1 in that report reflected that the Government was not only on notice that

Plaintiffs’ claims included A8/parcel 2, but it understood A8/parcel 2’s inclusion in this action. 4

That leads the court inexorably to the conclusion that Plaintiffs adequately pleaded their claim

for A8/parcel 2.

2. A8/parcel 2, A9/parcel 1, and B9 form the larger parcel.

4

The Government explained at argument that the parties exchanged their appraisal reports before

the Government had access to all the relevant documents governing the ownership of the

properties. ECF No. 254 at 56:16–57:8, 58:21–59:6, 59:9–16. That does nothing to change the

fact that it was clear that Plaintiffs’ claims included A8/parcel 2.

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The Government next argues that Plaintiffs cannot recover for A8/parcel 2 because it is

not adjacent to the railroad corridor. ECF No. 243 at 9, 15. But the fact that A8/parcel 2 is

separated from the rail corridor by A9/parcel 1 does not mean that Plaintiffs cannot recover

anything for its loss of value (if they can prove that loss at trial). The question is whether

A8/parcel 2 is part of the larger parcel with A9/parcel 1 and B9 such that Plaintiffs can recover

for its diminished value.

Before turning to what the parties dispute, the court looks first at what they agree upon.

The Government does not dispute that on December 5, 2017, the date of taking, D.R. Horton

owned A9/parcel 1 and Wynnstay Hunt owned B9, both of which are adjacent to the rail

corridor. Nor could it. The documents in the record confirm that D.R. Horton owned parcel 1 on

December 5, 2017, ECF No. 243-2 at Def.’s Ex. 8 (granting D.R. Horton title to parcel 1 in

2016), and Wynnstay Hunt owned B9 in trust for D.R. Horton on that date, ECF No. 243-1 at

Def.’s Ex. 2 (granting Wynnstay Hunt title to all three parcels in 2005); ECF No. 243-2 at Def.’s

Ex. 9 (B9 sales agreement dated January 20, 2017). And A9/parcel 1 and B9 are adjacent to the

railroad corridor. Plaintiffs “have cleared a preliminary hurdle in pursuit of their takings claims;

they owned land adjacent to the railway when the taking allegedly occurred.” Rogers v. United

States, 90 Fed. Cl. 418, 428 (2009).

To determine whether A8/parcel 2 was part of the “larger parcel” that the NITU

impacted, the court looks to the standard in the 2016 version of the Interagency Land Acquisition

Conference’s Uniform Appraisal Standards for Federal Land Acquisitions, often called the

“Yellow Book.” Tech. Coll. of the Low Country v. United States, 145 Fed. Cl. 408, 428 (2019)

(quoting the Yellow Book standard for determining the “larger parcel”). According to the

Yellow Book, the court considers whether the parcels share three unities: (1) physical unity, (2)

unity of use, and (3) unity of ownership. Yellow Book § 1.4.6 at 24 (“Elements to be considered

in determining the larger parcel are contiguity (or proximity) as it bears on the highest and best

use of the property, unity of ownership, and unity of highest and best use.”); see 29A C.J.S.

Eminent Domain § 148 (2024) (“[T]he test to determine whether a parcel to be acquired is a part

of a larger tract of land, so as to entitle owners to compensation for the remainder, is that there

must be unity of title, physical unity, and unity of use of the parcel taken and the parcel left.”).

The court need not analyze physical unity because the Government does not contest it.

And the maps included above make clear that the three parcels are contiguous but-for the rail

corridor splitting A9/parcel 1 and B9.

Nor must the court analyze unity of use. Unity of use, or the highest and best use, turns

on whether the potential use of the parcels is physically possible, legally permissible, financially

feasible, and profitable. Tech. Coll. of the Low Country, 145 Fed. Cl. at 429 (citations omitted).

The Government asserts Plaintiffs cannot “show the same or an integrated highest and best use

among the three properties.” ECF No. 243 at 17. But the Government provides no further

support for this assertion. And even though Plaintiffs argued that the parcels all share a highest

and best use in their cross-motion, the Government makes no mention of the issue in its reply

brief. This concedes the issue. Melwood Horticultural Training Ctr., Inc. v. United States, 151

Fed. Cl. 297, 309–10 (2020) (collecting cases).

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In any event, Plaintiffs argue that A8/parcel 2, A9/parcel 1, and B9 share the same

highest and best use as a single residential development and provide their appraisal report to

support their argument. ECF No. 246 at 12–13; ECF No. 246-5 at 13–14. Their appraisal report

concludes that the highest and best use of the parcels is residential use as a single subdivision.

ECF No. 246-5 at 13–14. According to Plaintiffs’ appraiser, residential use is the highest and

best use of the three parcels because the properties are contiguous (therefore, such use is

“physically possible”), the parcels are zoned “primarily for residential uses” (thus making such

use “legally permissible”), and the parcels’ “most financially feasible or maximally productive

use” based on other properties in the area and market trends would be residential use. Id. The

Government does not point to any physical, legal, or financial obstacles to the combined

residential use of the three parcels. Even though hindsight is 20/20, today there are two

residential communities on the property—one on A8/parcel 2 and A9/parcel 1, and another on

B9—separated by the recreational trail. Thus, the parcels share the same highest and best use.

Having resolved the first two unities, the court turns to the third—unity of ownership. In

broad terms, unity of ownership requires “uniform control over the ownership and future of all

property making up the larger parcel.” Yellow Book § 4.3.4.2 at 113 (2016) (citations omitted).

This is also reflected in treatises. For example, Eaton explains that “[u]nity of title generally

requires equal legal control over the ownership and future of the lands in question.” J.D. Eaton,

Real Estate Valuation in Litigation 83 (2d ed. 1995).

In the simple case, there is unity of ownership when one party holds fee title to all the

parcels comprising the larger parcel. See, e.g., W. Va. Pulp & Paper Co. v. United States, 200

F.2d 100, 103 (4th Cir. 1952) (explaining the company owned the entire claimed larger parcel

affected by the taking). On the other hand, there is a lack of unity of ownership when the party

holds no property interests in some of the claimed parcels. “[T]he just compensation assured by

the Fifth Amendment to an owner, a part of whose land is taken for public use, does not include

the diminution in value of the remainder caused by the acquisition and use of adjoining lands of

others for the same undertaking.” Campbell v. United States, 266 U.S. 368, 372 (1924).

Similarly, in United States v. 87.30 Acres of Land, 430 F.2d 1130, 1133 (9th Cir. 1970), the court

held that the larger parcel did not include land held by the parties’ sons because the parties had

no property interests in their sons’ land.

Unity of ownership is less straightforward when multiple parties hold interests in several

parcels, which is the case here. D.R. Horton held fee simple title to A9/parcel 1 on the date the

STB issued the NITU. ECF No. 243-2 at Def.’s Ex. 8. On that date, Wynnstay Hunt held title to

A8/parcel 2 and B9, as it had not yet conveyed these properties to D.R. Horton. See ECF No.

243-1 at Def.’s Ex. 2; ECF No. 243-4 at Def.’s Exs. 20–21. If Wynnstay Hunt and D.R. Horton

had not already signed the contracts to convey A8/parcel 2 and B9, the unity of ownership would

not exist. But they had executed these sales agreements by the date of the NITU. ECF No. 243-

1 at Def.’s Ex. 3 at 26; ECF No. 243-2 at Def.’s Ex. 9 at 26. This altered the ownership of the

parcels.

Under Florida law, the execution and delivery of a real estate sales agreement grants the

purchaser equitable title—also called beneficial title or beneficial ownership—to the underlying

property. And the purchaser’s “interest . . . includes the full value of the property to which he

holds equitable title.” Yaist v. United States, 656 F.2d 616, 623 (Ct. Cl. 1981); see Arko Enters.,

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Inc. v. Wood, 185 So. 2d 734, 737 (Fla. Dist. Ct. App. 1966) (describing the purchaser’s interest

as “beneficial title”); Aycock Bros. Lumber Co. v. First Nat’l Bank of Dothan, 45 So. 501, 506

(Fla. 1907) (“[T]he [purchaser] is regarded as the real beneficial owner, even though he has not

paid the purchase price.”); see also Waldorff Ins. & Bonding, Inc. v. Eglin Nat’l Bank, 453 So. 2d

1383, 1385 (Fla. Dist. Ct. App. 1984) (“Beneficial ownership passes to the purchaser . . . .”).

The seller holds “legal title as trustee, and when the terms of the contract are complied with he is

bound to convey.” Aycock Bros., 45 So. at 506; Ins. Co. of N. Am. v. Erickson, 39 So. 495, 498

(Fla. 1905); see Waldorff Ins., 453 So. 2d at 1385 (“[T]he seller retains mere naked legal title.”).

“The transfer of possession is irrelevant” to the purchaser’s and seller’s property interests held

under a real estate sales agreement. See J.C. Penney Co. v. Koff, 345 So. 2d 732, 736 (Fla. Dist.

Ct. App. 1977); Erickson, 39 So. at 498. At argument, the Government conceded that equitable

title is a property interest under Florida law. 5 ECF No. 254 at 14:18–25. Consequently, when

the STB issued the NITU, D.R. Horton held fee title to A9/parcel 1 and equitable title to

A8/parcel 2 and B9, and Wynnstay Hunt held legal title to A8/parcel 2 and B9 as trustee for D.R.

Horton.

The parties dispute whether a combination of these property interests can establish unity

of ownership across the three parcels. The Government argues the three parcels do not share

unity of ownership. ECF No. 243 at 15, 18–20; ECF No. 249 at 4–5. Plaintiffs contend the three

parcels share unity of ownership in D.R. Horton. ECF No. 246 at 7–11; ECF No. 250 at 2–7.

No binding precedent establishes what test this court should apply to evaluate unity of

ownership. Bd. of Cnty. Supervisors v. United States, 276 F.3d 1359, 1365 n.1 (Fed. Cir. 2002)

(noting that the larger parcel analysis in some jurisdictions requires all the composite properties

to be “owned by the same party” but declining to decide whether to “adopt such a rule” because

the parties did not ask it to); Miller v. United States, 620 F.2d 812, 828–29 (Ct. Cl. 1980)

(declining to reach whether the “lack of unity of title” precludes severance damages because the

plaintiffs were otherwise not entitled to severance damages). The court therefore considers the

varying approaches in other jurisdictions for guidance.

Early cases from other jurisdictions applied a strict test for unity of ownership that

required “all property comprising a single larger parcel to be owned to precisely the same extent

. . . by precisely the same owner.” Yellow Book § 4.3.4.2 at 113–14 (citations omitted); see,

e.g., Duggan v. State, 242 N.W. 98, 99 (Iowa 1932) (treating a person’s property held in fee

simple as separate from her property held as a joint tenant with her brother); Glendenning v.

Stahley, 91 N.E. 234, 238 (Ind. 1910) (deciding not to combine the husband’s fee simple

property with the property he holds as tenants by the entirety with his wife).

But as the Government acknowledges, other courts have treated multiple parcels as a

single parcel “where a single individual or entity does not hold identical title to all areas in the

5

The Government argued in its response and reply that D.R. Horton’s equitable title is a

contractual right only enforceable against Wynnstay Hunt in a court of equity. ECF No. 249 at

3, 5–6. At argument, however, the Government conceded that equitable title is a property right

under Florida law. ECF No. 254 at 14:18–25. Because the Government reversed its position on

the status of equitable title under Florida law, the court recognizes D.R. Horton’s equitable title

as a property interest.

11

larger parcel.” ECF No. 243 at 18. Those courts follow the “modern” trend of cases applying a

more flexible test where “market realities . . . should in fairness be considered,” so “the unity of

ownership inquiry focuses on whether a single decision maker has actual legal control of all

property at issue.” Yellow Book § 4.3.4.2 at 114 (citations omitted). Because of this trend, “[i]n

most jurisdictions, unity of ownership does not necessarily mean that the quality of the title is

identical.” Eaton, supra, at 83. Rather, “there must be a substantial unity of ownership.”

Barnes v. N.C. State Highway Comm’n, 109 S.E.2d 219, 225 (N.C. 1959). Even so, the

Government argues the modern approach does not alter the outcome here because “neither

Wynnstay Hunt nor D.R. Horton was a single decision maker with actual legal control across all

the A8, A9, and B9 properties on the date of the NITU,” so the parcels still lack unity of

ownership. ECF No. 243 at 18.

a) Federal cases apply a flexible test for unity of ownership.

This court applied the modern test for unity of ownership in Technical College of the Low

Country, and Stahlberg v. United States, 157 Fed. Cl. 202 (2021). Judge Sweeney explained that

when “the quality of the title [is] not identical,” “legal control over the ownership and future of

the lands in question [is] required to meet the unity of [ownership] test.” Tech. Coll. of the Low

Country, 145 Fed. Cl. at 428 (quoting Interagency Land Acquisition Conference, Uniform

Appraisal Standards for Federal Land Acquisitions 48 (2000)). Similarly, in Stahlberg, Judge

Lettow adopted the Yellow Book’s test and focused on whether a “single decision maker” had

“control” of all the parcels, “even though title [was] not identical” across the parcels. 157 Fed.

Cl. at 207 (quoting Yellow Book § 1.4.6 at 24, § 4.3.4.2 at 114). He further explained that, under

the Yellow Book’s test, “[i]n deciding whether there is a single decision maker and whether

unity of ownership exists, ‘fairness compels consideration of market realities.’” Id. (quoting

Yellow Book § 4.3.4.2 at 114). After acknowledging the lack of binding law on this court and

the varying tests from state law, he justified his application of the Yellow Book’s test as more

consistent with federal law and the “goals and purposes of just compensation” than the

traditional approach. Id. at 207–08. The court then applied that test to determine “whether

properties owned by three distinct LLCs—which each in turn are owned by the same two

LLCs—have the same decision maker with actual legal control over those properties to satisfy

the unity-of-ownership principle.” Id. at 207. “[E]ach of the properties at issue would be subject

to the same business judgment as the others” because “the decision-making power and

‘beneficial control’ over the properties are vested in the ‘same operative vendors.’” Id. at 209

(quoting Yellow Book § 1.4.6 at 24, § 4.3.4.2 at 114). As the court concluded, the parcels shared

unity of ownership. Id.

Like Stahlberg, the Ninth Circuit in United States v. 429.59 Acres of Land, 612 F.2d 459

(9th Cir. 1980), concluded that parcels held by three corporate entities shared unity of ownership.

429.59 Acres of Land, 612 F.2d at 463–64. Although the parcels were owned by three

corporations, the same person was the “President, Chairman of the Board, and Chief Executive

Officer of the three corporations formed for the purpose of acquiring the land.” Id. at 464. As

the court concluded, “[t]he fact that land . . . is owned by different entities does not destroy the

unity concept.” Id.

12

In another Ninth Circuit decision, the parties could claim severance damages to the

parcels served by the parties’ condemned easements. 6 United States v. 57.09 Acres of Land, 706

F.2d 280, 281–82 (9th Cir. 1983). The court found unity of ownership even though one claimant

held only a leasehold over one parcel served by the condemned easement. Id. at 282. As the

court explained, when “the leasehold is not condemned, but its value is diminished by the taking

of an easement providing access to the leased property, severance damages should similarly be

available to provide fair compensation.” Id.

Other federal courts have similarly acknowledged that varying property interests can be

combined to form a larger parcel under the unity of ownership inquiry. See, e.g., Baetjer v.

United States, 143 F.2d 391, 394 (1st Cir. 1944) (explaining that the size of the larger parcel

“does not depend upon artificial things like boundaries between tracts as established in deeds in

the owner’s chain of title, nor does it depend necessarily upon whether the owner acquired his

land in one transaction or even at one time” (internal citation omitted)); United States v. 14.36

Acres of Land in McMullen Cnty., 252 F. Supp. 2d 361, 364 (S.D. Tex. 2002) (“[T]h[e] flexible

view is more consistent with the goal of just compensation for what is in all other respects a

unified tract of land.”); United States v. 17.69 Acres of Land, No. 99cv1248 DMS (JMA), slip

op. at 6–7 (S.D. Cal. Aug. 30, 2004) (adopting the “flexible approach to the issue of unity of

ownership”). For example, a district court found unity of ownership of a larger parcel that

included a parcel held individually by a husband and a parcel held by the husband and his wife as

tenants by the entirety, specifically rejecting the argument that the varying property interests in

the underlying parcels prevented their collective valuation. United States v. 339.77 Acres of

Land, 240 F. Supp. 545, 547–49 (W.D. Ark. 1965). Another district court found a larger parcel

comprised of a parcel held by a couple and a parcel held by a corporation of which the husband

was the sole shareholder because: “[T]he buyer in the marketplace could readily acquire both

parcels from the same operative vendors, exercising the same business judgment in the

transaction.” 14.36 Acres of Land in McMullen Cnty., 252 F. Supp. 2d at 363–64 (quoting Julius

L. Sackman, Nichols on Eminent Domain § 14B.06[2] (rev. 3d ed. 2001)). Most recently, a

district court concluded parcels shared unity of ownership when a party owned all the composite

parcels “in some form,” including an easement over part of the larger parcel. United States v.

8.929 Acres of Land in Arlington Cnty., No. 1:20-cv-667 (LMB/JFA), 2024 WL 1376025, at *12

& n.16 (E.D. Va. Mar. 29, 2024).

6

The court in 57.09 Acres of Land distinguished United States v. Honolulu Plantation Co., 182

F.2d 172 (9th Cir. 1950). 57.09 Acres of Land, 706 F.2d at 281. In Honolulu Plantation, the

Ninth Circuit denied a claim by a lessee because it “had no interest whatsoever in the land which

had been condemned.” 57.09 Acres of Land, 706 F.2d at 281 (discussing Honolulu Plantation,

182 F.2d at 179). The lessee in Honolulu Plantation also claimed severance damages for parcels

it leased. 182 F.2d at 179–80. But because that lease explicitly reserved the right to

condemnation proceeds to the lessor, the government paid the lessor just compensation. Id. at

180. As a result, the lessee had no entitlement to just compensation. Id.; see also United States

v. 339.77 Acres of Land, 240 F. Supp. 545, 547 (W.D. Ark. 1965) (describing Honolulu

Plantation to involve a party that “held only a lease of doubtful validity on a great portion of the

land and its claim was basically for ‘business losses’”). At least one treatise has described the

Honolulu Plantation court’s discussion of unity of ownership as dicta. Eaton, supra at 82.

13

Even courts that have rejected a party’s claim of unity of ownership have acknowledged

the flexible test. See Se. Supply Header, LLC v. 110 Acres in Covington Cnty., No. 2:07-CZV-

291 KS-MTP, 2008 WL 127490, at *2 (S.D. Miss. Jan. 10, 2008); United States ex rel. Tenn.

Valley Auth. v. Stewart, 429 F. Supp. 658, 660–61 & n.2 (E.D. Tenn. 1976). The court in

Southeast Supply Header recognized that the modern trend of cases treats unity of ownership as

“more expansive” than the “traditional view” that “required identical entities and titles before

separate tracts could be considered a single unit.” 2008 WL 127490, at *2. There, the court

found no unity of ownership over a parcel held by a son with a parcel in which he held the future

interest subject to his parents’ present life estate. Id. There was no unity of ownership because a

“buyer attempting to acquire [all the parcels] would have to make separate arrangements with”

the son and his parents as either “could prevent a transaction to acquire a present possessory

interest in the whole.” Id. The “disunity of interest” between the son and his parents “is

precisely what the unity of [ownership] concept is established to avoid.” Id.

Another district court concluded there was no unity of ownership over three parcels

subject to varying property interests—a parcel held by one plaintiff in fee simple, a parcel owned

by that plaintiff and a second plaintiff as tenants in common, and a parcel owned by the plaintiff

and a third plaintiff as tenants by the entirety. Stewart, 429 F. Supp. at 659, 661. There, the

court explained the plaintiffs sought just compensation “not for incidental losses to the tracts

taken as a whole, but consistent with the separate ownership interests, for incidental losses to

each tract.” Id. But the court did not hold “common ownership must . . . be in fee simple

absolute” and noted “[i]t would appear that a common owner of interests less than a fee simple in

abutting properties might be able to recover depreciation.” Id. at 660 n.2.

b) A8/parcel 2, A9/parcel 1, and B9 share unity of ownership.

With these cases in mind, the court turns back to this dispute. Recall that neither D.R.

Horton nor Wynnstay Hunt held fee simple title to all three parcels on the date of the taking.

Rather, Plaintiffs claim unity of ownership based on D.R. Horton’s fee simple title to A9/parcel 1

and equitable title to A8/parcel 2 and B9. ECF No. 246 at 7; ECF No. 250 at 2. This case is thus

distinguishable from Campbell and 87.30 Acres of Land because D.R. Horton did hold some

property interest—equitable title and fee simple title—in all the parcels involved. Yet it is

undeniably different from Stahlberg, 429.59 Acres of Land, and 14.36 Acres of Land, where all

the plaintiffs held fee simple title to all the property at issue.

Yet unity of ownership does not require one party to hold fee simple title to all the

parcels—one party does not have hold both all the sticks in each bundle and all the bundles. As

the court illustrates above, other federal courts have combined parcels into a larger parcel (1)

when the party held one parcel in fee simple and another as a tenancy by the entirety, 339.77

Acres of Land, 240 F. Supp. at 547–49, (2) when the party’s interests included an easement,

8.929 Acres of Land in Arlington Cnty., 2024 WL 1376025, at *12 & n.16, and (3) when the

party held a leasehold interest and easement, 57.09 Acres of Land, 706 F.2d at 282. In other

words, one party needs to hold sufficient interest to control the parcels to have unity of

ownership. Accordingly, D.R. Horton need not hold fee simple title to all three parcels at the

time the STB issued the NITU to have unity of ownership; it just needed to control the future of

the property.

14

In addition, when federal courts have considered whether to combine parcels held by

multiple parties with varying property interests, the courts have considered whether the parties

seek to receive one award for the larger parcel or separate awards based on their property

interests. See Stewart, 429 F. Supp. at 661; 339.77 Acres of Land, 240 F. Supp. at 549. When

the parties sought one award for the larger parcel, the court valued the composite parcels together

and stated, “[t]he question of how or when [the parties] may divide the severance damages

included in the award is a matter for them and them alone.” 339.77 Acres of Land, 240 F. Supp.

at 549. On the other hand, when the parties sought individual severance damages awards based

on their respective property interests, a federal court refused to value the composite parcels

together. See Stewart, 429 F. Supp. at 661. Here, Wynnstay Hunt and D.R. Horton seek a single

award for diminution of the value of the larger parcel. See generally ECF No. 246. In that way,

Wynnstay Hunt’s legal title to A8/parcel 2 and B9 at the time of the NITU does not prevent a

valuation of the three parcels together.

The question remains whether D.R. Horton’s equitable title to A8/parcel 2 and B9 and fee

simple title to A9/parcel 1 were sufficient for unity of ownership. They were. D.R. Horton’s

equitable title and right of specific performance gave it sufficient control over A8/parcel 2 and

B9 such that A8/parcel 2, A9/parcel 1, and B9 can be combined to form the larger parcel for

valuation in this case. 7

The Supreme Court explained that just compensation “should be measured in various

ways depending upon the circumstances of each case and that no general formula should be used

for the purpose.” Miller, 317 U.S. at 373–74. Rather than establish a “formula,” “[c]ourts have

to adopt working rules in order to do substantial justice in eminent domain proceedings.” Id. at

375. “The constitutional requirement of just compensation derives as much content from the

basic equitable principles of fairness as it does from technical concepts of property law.” Almota

Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 478 (1973) (internal citation

omitted) (quoting United States v. Fuller, 409 U.S. 488, 490 (1967)). Because of these fairness

principles, “[t]he Government must pay just compensation for those interests ‘probably within

the scope of the project from the time the Government was committed to it.’” Id. at 477–78

7

Several state court decisions provide more support for the conclusion that equitable title can

suffice to create unity of ownership. A California court decided that two parcels shared unity of

ownership when a party held title to one parcel and held equitable ownership over the other.

Cnty. of Santa Clara v. Curtner, 54 Cal. Rptr. 257, 261 (Cal. Dist. Ct. App. 1966). The Arkansas

Supreme Court treated parcels as a single parcel when the buyer and the seller had agreed to the

sale of all the relevant parcels before the taking, although some of the deeds were executed after

the taking. Ark. State Highway Comm’n v. Ark. Real Est. Co., 471 S.W.2d 340, 342 (Ark. 1971).

On the other hand, when the party bringing the claim for just compensation was the seller under

the real estate sales agreement, the Supreme Court of Texas decided the seller lacked unity of

ownership over the parcels subject to the sales agreement because “[e]quitable title was in the

vendee” at the time of the taking. City of Austin v. Capitol Livestock Auction Co., 453 S.W.2d

461, 464 (Tex. 1970). These state courts treated the purchasers under real estate sales

agreements as the relevant property owners for the unity of ownership inquiry, which is

consistent with the Supreme Court’s command to “do substantial justice in eminent domain

proceedings.” See Miller, 317 U.S. at 375.

15

(quoting Miller, 317 U.S. at 377). Finally, the Court has emphasized that “[t]o say that such an

owner would be compensated by paying him only for the narrow strip actually appropriated, and

leaving out of consideration the depreciation to the remaining land by the manner in which the

part was taken, and the use to which it was put, would be a travesty upon justice.” Grizzard, 219

U.S. at 185–86.

To “do substantial justice” in this case and account for the “market realities” at work, the

court holds D.R. Horton’s equitable title to A8/parcel 2 and B9 created unity of ownership with

A9/parcel 1. As Plaintiffs explain, the three parcels were “in the process of being transferred,

pursuant to binding sales contracts, from the fee simple ownership of Wynnstay Hunt to the fee

simple ownership of D.R. Horton” on December 5, 2017, the date the STB issued the NITU.

ECF No. 246 at 9; ECF No. 250 at 4. The present unity of ownership dispute resulted merely

from the fortuitous timing of the NITU. See ECF No. 246 at 1, 9; ECF No. 250 at 4. If the STB

issued the NITU before March 6, 2015, Wynnstay Hunt held fee simple title to all three parcels

and could have sought compensation for the taking affecting all three parcels. See ECF No. 254

at 7:18–8:3. Likewise, if the STB issued the NITU after February 28, 2019, D.R. Horton would

have owned all three parcels and could have sought compensation for the taking affecting all of

them. See id. at 8:15–19. This dispute only arose because the STB happened to issue the NITU

in the middle of the transactions conveying property from Wynnstay Hunt to D.R. Horton. To

reduce the compensation owed to Plaintiffs due to this fortuitous timing would be anything but

just.

The terms of the sales agreements likewise bolster the court’s conclusion. Wynnstay

Hunt could not waste the parcels after signing the sales agreements and before the closings, ECF

No. 243-1 at Def.’s Ex. 3 ¶ 11; ECF No. 243-2 at Def.’s Ex. 9 ¶ 11, nor could it create any new

encumbrances on the parcels, ECF No. 243-1 at Def.’s Ex. 3 ¶¶ 5.1(f)–(g), 8.5; ECF No. 243-2 at

Def.’s Ex. 9 ¶¶ 5.1(f)–(g), 8.5. If Wynnstay Hunt defaulted on those, or other, provisions of the

sales agreements, D.R. Horton could compel specific performance. ECF No. 243-1 at Def.’s Ex.

3 ¶ 9.2; ECF No. 243-2 at Def.’s Ex. 9 ¶ 9.2. Accordingly, Wynnstay Hunt could not attempt to

alter the parcels before the closings without D.R. Horton’s permission, indicating that Wynnstay

Hunt lacked control over the parcels.

The Government is not helped by the fact that Wynnstay Hunt and D.R. Horton entered

an easement agreement at the closing on A9/parcel 1 to grant D.R. Horton access across

A8/parcel 2. ECF No. 243-4 at Def.’s Ex. 24. It argues this easement was only necessary

because “D.R. Horton lacked that hallmark property interest, the right to exclude, on the date of

the NITU.” ECF No. 249 at 5; see also ECF No. 243 at 19. But D.R. Horton need not hold all

the sticks in the A8/parcel 2 and B9 bundles of rights; it is enough that it held sufficient sticks to

control the future of those parcels. The Government has not identified a basis in law for its

exaltation of the right to exclude others as the beginning and the end of the analysis. Nor has the

Government identified anything in the sales agreements that limits D.R. Horton’s control over

the disposition of the property. In fact, the sales agreements’ terms make clear that D.R. Horton,

not Wynnstay Hunt, controlled the future of A8/parcel 2 and B9 after signing the sales

agreements. That is all the Yellow Book requires. See also Eaton, supra, at 83.

True, the sales agreements’ terms provided the fee simple title and possession of the

parcels did not pass until the closings. ECF No. 243-1 at Def.’s Ex. 3 ¶ 4.2; ECF No. 243-2 at

16

Def.’s Ex. 9 ¶ 4.2. While the Government is correct that these terms reflect that D.R. Horton did

not hold the fee simple title to A8/parcel 2 and B9 at the time the STB issued the NITU, they do

not render D.R. Horton’s equitable title interest meaningless. As the Government conceded,

equitable title is a property interest. ECF No. 254 at 14:18–25. D.R. Horton as the purchaser

obtained equitable title to A8/parcel 2 and B9 upon signing the sales agreements, and under

Florida law, its lack of possession of the parcels did not affect its property interests. See J.C.

Penney Co., 345 So. 2d at 736; Erickson, 39 So. at 498. The question for the court is whether

such a property right is sufficient to create unity of ownership, so the fact that the full fee simple

title, or possession, had not yet passed is not dispositive.

The Government also challenges unity of ownership because the sales agreements placed

the risk of loss on Wynnstay Hunt until the closings. ECF No. 243-1 at Def.’s Ex. 3 ¶ 6.9; ECF

No. 243-2 at Def.’s Ex. 9 ¶ 6.9. Again, D.R. Horton need not hold all the property rights.

Considering D.R. Horton’s control over A8/parcel 2’s and B9’s futures, the risk of loss resting

with Wynnstay Hunt at the time the STB issued the NITU is not dispositive.

The Government raises two more arguments that A8/parcel 2, A9/parcel 1, and B9 do not

share unity of ownership, but neither is availing.

First, the Government argues Wynnstay Hunt’s legal title should be given increased

weight before this court as a court of law, and not of equity. See ECF No. 249 at 3 & n.1, 5–6;

ECF No. 254 at 15:10–25, 17:2–9, 60:14–20. But this argument is based on the Government’s

theory that equitable title is not a property right but a contractual right that D.R. Horton could

exercise against Wynnstay Hunt in state court. The Government’s concession that equitable title

is, in fact, a property right under Florida law defeats this argument.

Second, to the extent the Government argues that the court should treat formal title

ownership as dispositive for judicial efficiency, see ECF No. 254 at 60:9–10, 60:14–61:15,

62:23–63:3 (describing the Government’s approach to unity of ownership as the “path of least

resistance”), that justification jumps the tracks. The court’s task is to determine just

compensation, not follow the easy way out. As the court’s discussion above makes clear, courts

have moved away from the rigid formality the Government seeks to reimpose here, and this court

sees no reason in law or common sense to decide this case based on what is easy rather than what

is just.

In sum, A8/parcel 2, A9/parcel 1, and B9 share unity of ownership, so these three parcels

shall be valued together as a single parcel to ensure Plaintiffs receive just compensation for their

taking claims.

3. The three parcels should be valued together in the “before” condition as

unencumbered by the railroad easement.

Plaintiffs also move for partial summary judgment to establish that the larger parcel in

this case in the “before” condition should be valued “as unencumbered by any easement.” See

ECF No. 246 at 15. Prior decisions from this court establish that the value of the larger parcel in

the “before” condition is based on “the value of [the] plaintiff[’s] land unencumbered by a

railroad easement.” See, e.g., Raulerson v. United States, 99 Fed. Cl. 9, 12 (2011); Rogers v.

17

United States, 101 Fed. Cl. 287, 294 (2011). The Government does not contest that the valuation

treats the parcel in the “before” condition as unencumbered by the railroad easement. Because it

is uncontroverted, the court grants Plaintiffs’ motion for partial summary judgment insofar as it

seeks to establish that the “before” condition of the larger parcel is unencumbered by the railroad

easement. This conclusion is narrow in scope: If any other pre-existing conditions affected the

railroad corridor on the date of the NITU, the court does not now decide whether those

conditions should inform the valuation of the parcel in the “before” condition. See Rasmuson,

807 F.3d at 1345; Loveridge v. United States, 167 Fed. Cl. 44, 48–50 (2023). Yet the railroad

easement does not affect the “before” condition valuation.

B. The Anti-Assignment Act does not apply.

The Government also seeks to prevent the valuation of the three parcels together by

invoking the Anti-Assignment Act. ECF No. 243 at 20–24; ECF No. 249 at 7–9. The Anti-

Assignment Act generally prohibits “a transfer or assignment of any part of a claim against the”

Government or “the authorization to receive payment for any part of the claim,” until “after a

claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has

been issued.” 31 U.S.C. § 3727(a)–(b). The Supreme Court has acknowledged that this Act

“prohibits the voluntary assignment of a compensation claim against the Government for the

taking of property.” 8 United States v. Dow, 357 U.S. 17, 20 (1958). An attempted assignment of

a claim “does not forfeit the claim,” but “[i]t leaves the claim where it was before the purported

assignment.” Colonial Navigation Co. v. United States, 181 F. Supp. 237, 247 (Ct. Cl. 1960).

The Government argues the terms in the sales agreements that “purport[] to ‘reserve’ the

right to takings claims against the United States” with Wynnstay Hunt violate the Anti-

Assignment Act, and any attempt to rely on those terms to bolster Plaintiffs’ larger parcel

argument must fail under that Act. ECF No. 243 at 21–24. Recall, the A8-A9 sales agreement

and B9 sales agreement reserved to Wynnstay Hunt the right to any just compensation award for

a taking action related to the railroad corridor. ECF No. 243-1 at Def.’s Ex. 3 ¶¶ 4.2, 7; ECF No.

243-2 at Def.’s Ex. 9 ¶¶ 4.2, 7. The deeds also include reservation clauses to the same effect.

ECF No. 243-2 at Def.’s Ex. 8 at 1; ECF No. 243-4 at Def.’s Ex. 20 at 1; ECF No. 243-4 at

Def.’s Ex. 21 at 1. An amendment to the B9 sales agreement even acknowledged that D.R.

Horton was not “required to be a party” to any taking litigation related to the railroad corridor.

ECF No. 243-3 at Def.’s Ex. 16 ¶ 2.

But Plaintiffs contend that they did not assign any claims in this case. ECF No. 246 at

15–17; ECF No. 250 at 7–9. They are correct. As the court explains above, the Government

acknowledged that the equitable title that D.R. Horton held to A8/parcel 2 and B9 is a property

right. ECF No. 254 at 14:18–25. Consequently, both D.R. Horton and Wynnstay Hunt held

property rights in the parcels at issue on the date of the NITU—D.R. Horton held fee simple title

to A9/parcel 1 and the equitable title to A8/parcel 2 and B9, and Wynnstay Hunt held the legal

title to A8/parcel 2 and B9. Even though the terms of the sales agreements allocated any

compensation for a taking claim to Wynnstay Hunt and even did not require D.R. Horton to be a

party to a taking claim, the presence of both Plaintiffs here means Wynnstay Hunt is not

8

Because the parties do not argue that any statutory exceptions to the Act apply, the court does

not address them.

18

advancing a purportedly assigned claim from D.R. Horton. Because both Plaintiffs have

property rights and both bring a unified claim here, no assignment has taken place. See Wall

Indus., Inc. v. United States, 10 Cl. Ct. 82, 106 (1986); Whitney Benefits, Inc. v. United States, 31

Fed. Cl. 116, 119 & n.1 (1994); see also Hansen v. United States, 65 Fed. Cl. 76, 130–31 (2005)

(deciding a seller had standing to bring a taking claim and explaining a state court decision that

established the seller and purchaser under a real estate sales agreement had standing based on

their property rights). Further, the presence of both Plaintiffs before the court mitigates the

concerns animating the Anti-Assignment Act — the risk that the Government would have to pay

twice for the same claim. See United States v. Shannon, 342 U.S. 288, 292 (1952); Hobbs v.

McLean, 117 U.S. 567, 576 (1886) (describing the purpose of a predecessor statute to 31 U.S.C.

§ 3727 as ensuring “the government might not be harassed by multiplying the number of persons

with whom it had to deal, and might always know with whom it was dealing”). Both D.R.

Horton and Wynnstay Hunt are before the court, and both will be bound by this court’s final

judgment. What they do with their damages award is their concern (and potentially a concern for

another court if that allocation leads to a future contract dispute between them). See 339.77

Acres of Land, 240 F. Supp. at 549.

The Government fares no better arguing that Plaintiffs’ unity of ownership argument

improperly appears to advance one claim for both Plaintiffs as co-owners of the larger parcel.

ECF No. 249 at 7–8. Plaintiffs refuted that characterization of their claims because their unity of

ownership argument recognizes their differing property interests but rests on D.R. Horton’s

interests. ECF No. 250 at 8–9. Because the court concludes above that the parcels share unity of

ownership in D.R. Horton, see supra Section III.A.2.b, the court rejects the Government’s

attempt to characterize Plaintiffs as co-owners of the parcels. Rather, as the court concludes

above, both Plaintiffs have property interests in the underlying parcels and are bringing a single

claim to the court. That is enough to dispose of the Anti-Assignment Act argument.

IV. Conclusion

For all these reasons, the court DENIES the Government’s motion for partial summary

judgment, ECF No. 243, and GRANTS Plaintiffs’ cross-motion for partial summary judgment,

ECF No. 246.

It is so ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

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