United States v. 44.00 ACRES OF LAND, ETC., Civ. A. No. 5099.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtBURKE
Citation110 F. Supp. 168
PartiesUNITED STATES v. 44.00 ACRES OF LAND, MORE OR LESS, IN TOWN OF GREECE, MONROE COUNTY, N. Y. et al.
Decision Date28 January 1953
Docket NumberCiv. A. No. 5099.

110 F. Supp. 168

UNITED STATES
v.
44.00 ACRES OF LAND, MORE OR LESS, IN TOWN OF GREECE, MONROE COUNTY, N. Y. et al.

Civ. A. No. 5099.

United States District Court W. D. New York.

January 28, 1953.


George L. Grobe, U. S. Atty., Buffalo, N. Y., for plaintiff; R. Norman Kirchgraber, Asst. U. S. Atty., Buffalo, N. Y. and Adolph H. Huttar, Sp. Atty., Department of Justice, Buffalo, N. Y., of counsel.

Frederick Wiedman, Rochester, N. Y., and Gallop, Climenko & Gould, New York

110 F. Supp. 169
City, for defendant John H. Odenbach; Jesse Climenko and Arthur S. Friedman, New York City, of counsel

BURKE, District Judge.

This is a motion by the defendant Odenbach to vacate and set aside the declaration of taking filed herein on June 11, 1952 on the ground that the estimate of just compensation of $300,000 contained therein was not determined and arrived at in good faith, and to vacate and set aside the ex parte judgment entered thereon dated June 16, 1952.

The plaintiff commenced proceedings for condemnation of the property described in the declaration of taking on December 27, 1951 by filing with the Clerk of this Court a summons and complaint. On December 29, 1951 an order of immediate possession was made and entered by this Court. On February 13, 1952 an answer was filed on behalf of the defendant Odenbach. Prior to the institution of proceedings for condemnation, the plaintiff had been in possession of substantial portions of the property involved since on or about July 11, 1951 under a written right of entry granted to the United States by Odenbach Holding Corporation from whom the defendant Odenbach acquired title to the property. The right of entry was executed on July 11, 1951. It recited negotiations between the parties for the purchase of the property involved and provided for 90 days subsequent to July 11, 1951 as the period of its duration. On October 10, 1951 Odenbach Holding Corporation conveyed title of the property to John H. Odenbach. Negotiations for the purchase of the property were carried on between representatives of the owner and representatives of the Government subsequent to July 11, 1951. On October 11, 1951, when the right of entry expired, no agreement had been reached for the purchase of the property. Further negotiations were had regarding a supplemental right of entry, but no supplemental right of entry was ever executed, although the Government continued in possession.

Subsequent to the commencement of condemnation proceedings, there were many items of property used or usable in connection with the property which the Government desired to appropriate. Accordingly on March 31, 1952, the attorneys for the Government and for the owner entered into a written stipulation providing that 116 separately numbered items of property consisting of railroad tracks, electrical equipment, storage tanks, loading cranes and miscellaneous equipment should be deemed part of the real estate to be considered in the valuation in the condemnation proceedings. On June 16, 1952, after the judgment of this Court had been entered on the declaration of taking, the defendant Odenbach filed a motion for an order for the distribution and payment of the sum of $300,000 deposited with the Court together with the filing of the declaration. The Government filed a cross-motion for the release of the sum on deposit for the purpose of paying taxes, for the purpose of paying a mortgage held by Reconstruction Finance Corporation amounting to $129,500 and accumulated interest, and for the purpose of paying a judgment in favor of the United States in the sum of $168,891.53 against Odenbach Shipbuilding Corp. entered November 30, 1951 in an action in this Court. The Government claimed on that motion that Odenbach Shipbuilding Corp. and Odenbach Holding Corp. were mere alter egos of John H. Odenbach and that the judgment against Odenbach Shipbuilding Corp. should be determined to be a valid and subsisting lien against the premises in condemnation or in the alternative that the amount of the judgment should be set off against the sum on deposit with the Court and against any further sum that might be allowed for just compensation for the taking by the United States. A hearing on the motions was had on June 23, 1952. Before a determination could be had the defendant Odenbach filed the present motion to set aside the declaration of taking and the judgment entered thereon. He incorporated in that motion a motion for an order permitting the withdrawal of his notice of motion and petition for the distribution and payment of the sum deposited with the Court together with the declaration of taking.

110 F. Supp. 170

On July 24, 1952 the plaintiff filed an answer and return to the motion to set aside the declaration of taking and the judgment entered thereon, supported by an affidavit of R. Norman Kirchgraber, Assistant United States Attorney. In its answer and return the plaintiff opposed the motion on the grounds: (1) that this Court is without discretion or jurisdiction to set aside the declaration of taking; (2) that the allegations set forth in the notice of motion and supporting affidavits are insufficient to warrant the setting aside...

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10 practice notes
  • U.S. v. Certain Land in Detroit, Mich., No. 79-CV-73934-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 24, 1999
    ...litigation, the adequacy of the amount deposited. In support of their argument, Defendants rely on United States v. 44.00 Acres of Land, 110 F.Supp. 168 Page 778 In that case, the Government filed the first Declaration of Taking, and deposited $300,000 with the district court. The Governmen......
  • State ex rel. Sharp v. 0.62033 Acres of Land in Christiana Hundred, New Castle County
    • United States
    • Superior Court of Delaware
    • December 7, 1954
    ...as to whether the deposit represents a good faith estimate of just compensation. See United States v. 44.00 Acres, etc., D.C.N.Y., 110 F.Supp. 168. It has also been held that the Court may deny the right to possession if it should find, upon such inquiry, that just compensation has been gro......
  • United States v. 44.00 ACRES OF LAND, ETC., No. 287
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 12, 1956
    ...the Declaration of Taking on the ground that the original estimate of $300,000 as the value of the land taken was made in bad faith; 110 F.Supp. 168. The evidence showed that the Government had previously estimated the property to be worth $500,000 and had prepared a Declaration of Taking b......
  • United States v. Certain Parcels of Land, No. 11273.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 12, 1954
    ...that the declaration of taking itself should be set aside, citing the case of United States v. 44.00 Acres of Land, D.C.W.D.N.Y.1953, 110 F.Supp. 168. Suffice it to say that the cited case is clearly distinguishable from the facts of the present condemnation. There, the original estimated c......
  • Request a trial to view additional results
10 cases
  • U.S. v. Certain Land in Detroit, Mich., No. 79-CV-73934-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 24, 1999
    ...litigation, the adequacy of the amount deposited. In support of their argument, Defendants rely on United States v. 44.00 Acres of Land, 110 F.Supp. 168 Page 778 In that case, the Government filed the first Declaration of Taking, and deposited $300,000 with the district court. The Governmen......
  • State ex rel. Sharp v. 0.62033 Acres of Land in Christiana Hundred, New Castle County
    • United States
    • Superior Court of Delaware
    • December 7, 1954
    ...as to whether the deposit represents a good faith estimate of just compensation. See United States v. 44.00 Acres, etc., D.C.N.Y., 110 F.Supp. 168. It has also been held that the Court may deny the right to possession if it should find, upon such inquiry, that just compensation has been gro......
  • United States v. 44.00 ACRES OF LAND, ETC., No. 287
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 12, 1956
    ...the Declaration of Taking on the ground that the original estimate of $300,000 as the value of the land taken was made in bad faith; 110 F.Supp. 168. The evidence showed that the Government had previously estimated the property to be worth $500,000 and had prepared a Declaration of Taking b......
  • United States v. Certain Parcels of Land, No. 11273.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 12, 1954
    ...that the declaration of taking itself should be set aside, citing the case of United States v. 44.00 Acres of Land, D.C.W.D.N.Y.1953, 110 F.Supp. 168. Suffice it to say that the cited case is clearly distinguishable from the facts of the present condemnation. There, the original estimated c......
  • Request a trial to view additional results

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