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

• Decision Date: 28 January 1953
• Docket Number: Civ. A. No. 5099.
• Citation: 110 F. Supp. 168
• Parties: UNITED STATES v. 44.00 ACRES OF LAND, MORE OR LESS, IN TOWN OF GREECE, MONROE COUNTY, N. Y. et al.
• Court: U.S. District Court — Western District of New York

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

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.

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 of the judgment entered on the declaration of taking; (3) that upon the merits neither the declaration nor the judgment should be set aside.

On September 12, 1952, on the occasion of a hearing on a motion by the Government to vacate or limit a notice of the defendant Odenbach to take depositions of witnesses, the Court inquired whether the Government still contended that the Court had no power to determine the question of good faith in the filing of the declaration of taking. The reason for adverting to that question was that it was not clear whether the Government persisted in questioning the Court's authority to determine the question of good faith in the filing of the declaration of taking, even though that had been formally stated as a ground for objection in the Government's answer and return to the notice of motion. A brief had been filed by the Government after the original hearing on the motion to set aside the declaration of taking and the judgment entered thereon, but the position of the Government on the question had not been made clear. In the discussion in open court on September 12, 1952 between the Court and the Government's representative and in the presence of opposing counsel, it seemed to be the position of the Government that the question of good faith in filing the declaration of taking was properly open for determination by the Court. It was then decided in open court that, since the question of good faith was properly open for determination, the most satisfactory way to resolve it was by taking testimony bearing on the question of good faith rather than on the scant affidavits that had been filed in support of and in opposition to the motion. Accordingly a hearing was held on December...