Introduction

On October 29, 2002, the New Hampshire Supreme Court issued a decision in the case of City of Manchester v. Airpark Business Center Condominium Unit Owners' Association ("Airpark"). ⁽¹⁾ The Airpark decision was one of first impression in the State of New Hampshire and held that a landowner is not entitled to severance damages for claimed diminution in value to his/her land caused by the acquisition of adjoining land, not owned by the landowner, for the same project. ⁽²⁾

Facts

Airpark is an appeal from the New Hampshire Superior Court's Order to preclude the Airpark Business Center Condo Unit Owners Association from seeking damages caused by the extension of a runway at the Manchester Airport. ⁽³⁾ The City of Manchester owns and operates the Manchester Airport. By virtue of its eminent domain power, the City of Manchester took 0.08 acres of the Defendant's property in order to relocate Harvey Road which is now part of the expanded runway. ⁽⁴⁾ The Plaintiffs then brought suit in the New Hampshire District Court seeking to recover damages for the City's taking.

Airpark's Holding

The State of New Hampshire does not expressly require compensation be given when land is taken for the "public use"; however, the spirit of the New Hampshire Constitution dictates that the government is prohibited from taking land for the public use without just compensation. ⁽⁵⁾ An owner of condemned property in New Hampshire is entitled to the difference between the property's fair market value before and after the government's taking. ⁽⁶⁾ When the government partially takes property, the property owner is entitled to not only the fair market value of the property taken but also any compensation for the effect of taking on the entire property. ⁽⁷⁾ "Unless there is a taking, the government is not required to compensate a landowner even though its actions affect the value of his land." ⁽⁸⁾ These type of damages are known as "severance damages." ⁽⁹⁾

In Airpark, the New Hampshire Supreme Court held that the Defendant was entitled to compensation including severance damages; however, the Defendant claimed that it was entitled to severance damages for the diminution in value to their land that resulted from the City's extension of Runway 6-24 upon adjoining land which the Defendant did not own. The New Hampshire Supreme Court disagreed and relied on Campbell v. United States ⁽¹⁰⁾ for guidance. Since Campbell has been accepted by numerous other jurisdictions, ⁽¹¹⁾ the New Hampshire Supreme Court agreed to follow the Campbell decision. The Campbell court held that "just compensation . . . to an owner, a part of whose land is taken for public use, does not include diminution in value of the remainder caused by the acquisition and use of adjoining land [not owned by the landowner] for the same undertaking." ⁽¹²⁾ A plaintiff does not have a right to prevent the taking and use of land of others. ⁽¹³⁾

The New Hampshire Supreme Court acknowledged, however, that there is an exception to the Campbell rule. In Griffith v. Montgomery County, ⁽¹⁴⁾ the Court held that a landowner can recover damages for the remainder of his property when he can demonstrate that "his property [is] indispensable to the overall project, that the use put to his property taken [is] a substantial part of the overall project, and that the damages flowing from the overall project cannot be separated between the use put to the property taken from the property owner and the use put to abutting property taken." ⁽¹⁵⁾ In order for the Campbell exception to apply, a person must demonstrate "indispensability, substantiality, and inseparability" in the property taking from the taking scheme as a whole. ⁽¹⁶⁾

The New Hampshire Supreme Court reasoned that there were two distinct projects under consideration. One project was for the extension of Manchester Airport's Runway 6-24 and the other project was for the relocation of Harvey Road (it was displaced as a result of the runway's extension). ⁽¹⁷⁾ The Court reasoned that the appropriation of the Defendant's land could be differentiated from the purpose of expanding the Manchester Airport's runway. ⁽¹⁸⁾ Although the Harvey Road extension was related to the Manchester Airport Runway Project, the Defendant's property was "segregable" from that to which the adjoining lands were put, and none of the Defendant's land was utilized in the operation of the Manchester Airport. ⁽¹⁹⁾

In sum, the Court held that the Defendant's land was not taken for the purpose of expanding Manchester Airport's Runway 6-24 and the current location of Harvey Road was not the only possible way to redesign the reconfiguration of the road. ⁽²⁰⁾ Consequently, the Defendant's property was not "indispensable" to either project. ⁽²¹⁾ Since the City of Manchester condemned only 0.08 acres of the Defendant's land, and it did not use any of the Defendant's property in the extension of Runway 6-24, the taking was not considered a substantial part of the Manchester Airport Runway Extension Project. Ergo, the Plaintiff could not recover for the diminution in his land caused by the acquisition of adjoining land.

Conclusion

Airpark was a case of first impression in New Hampshire. The New Hampshire Supreme Court agreed with Campbell v. United States in holding that an owner whose land is taken for the public use is not entitled to the diminution in value of the remainder caused by the acquisition of adjoining land unless: his property is indispensable to the overall project; the use of his property taken is a substantial part of the overall project; and, the damages flowing from the overall project cannot be separated between the use to the property taken from the owner and the use of the abutting property taken.

1. 2001-558 (NH Oct. 29, 2002).

2. Id.

3. Id.

4. Id.

5. See Sibson v. State, 111 NH 305, 306-07, 282 A.2d 664, 665 (1971); see also NH Const. Pt. I, Art. 12.

6. See State v. 3M Nat.'l Advertising Co., 139 NH 360, 362, 653 A.2d 1092, 1094 (1995).

7. See Airpark, supra; see also O.K. Fairbank Co. v. State, 108 NH 248, 250 (1967), 234 A.2d 108, 110 (1967).

8. Airpark, supra (quoting United States v. 15.65 Acres of Land, Etc., 689 F.2d 1329, 1331 (9th Cir. 1982), cert. denied, 460 U.S. 1041 (1983).

9. O.K. Fairbank Co., supra.

10. 266 U.S. 368 (1924).

11. See, e.g., United States v. 15.65 Acres of Land, Etc., 689 F.2d 1329, 1332 (9th Cir. 1982); United States v. Kooperman, 263 F.2d 331, 332 (2nd Cir. 1959); Interstate Northborough v. State, 66 S.W. 3d 213, 219 (Tex. 2001); City of Abuquerque v. Westland Devel., 909 P.2d 25, 31 (N.M. Ct. App. 1995); Utah Dept. of Transp. v. D'Ambrosio, 743 P.2d 1220, 1222 (Utah 1987).

12. Id.

13. Id. at 371.

14. Griffith v. Montgomery County, 470 A2d 840, 844 (Md. Ct. Spec. App. 1984), (cert. denied), 469 U.S. 1191 (1985).

15. Griffith v. Montgomery County, 470 A.2d 840, 844 (Md. Ct. App. 1984), cert. denied, 469 U.S. 1191 (1985).

16. See United States v. 15.65 Acres of Land, Etc., 689 F.2d 1329, 1331 (9th Cir. 1982), (cert. denied), 460 U.S. 1041 (1983).

17. See Airpark at 4.

18. Id.

19. Id.

20. Id.