United States v. 44.00 ACRES OF LAND, ETC., No. 287

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtCLARK, , and FRANK and HINCKS, Circuit
Citation234 F.2d 410
PartiesUNITED STATES of America, Petitioner-Plaintiff-Appellee, v. 44.00 ACRES OF LAND, MORE OR LESS, SITUATE IN THE TOWN OF GREECE, COUNTY OF MONROE, State of New York, and John H. Odenbach et al., Defendants, Commissioners James P. B. Duffy, Donald J. Corbett and Joseph E. Silverstein, Appellants.
Docket NumberNo. 287,Docket 23895.
Decision Date12 June 1956

234 F.2d 410 (1956)

UNITED STATES of America, Petitioner-Plaintiff-Appellee,
v.
44.00 ACRES OF LAND, MORE OR LESS, SITUATE IN THE TOWN OF GREECE, COUNTY OF MONROE, State of New York, and John H. Odenbach et al., Defendants,
Commissioners James P. B. Duffy, Donald J. Corbett and Joseph E. Silverstein, Appellants.

No. 287, Docket 23895.

United States Court of Appeals Second Circuit.

Argued May 11, 1956.

Decided June 12, 1956.


234 F.2d 411
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234 F.2d 412
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234 F.2d 413
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234 F.2d 414
Frederick Wiedman, Rochester, N. Y., Gallop, Climenko & Gould, New York City, Jesse Climenko and Arthur S. Friedman, New York City, of counsel, for defendant-appellant

James P. B. Duffy and Donald J. Corbett, Rochester, N. Y., for appellants.

Perry W. Morton, Asst. Atty. Gen., John O. Henderson, U. S. Atty., Buffalo, N. Y., Roger P. Marquis and Harold S. Harrison, Attys., Dept. of Justice, Washington, D. C., for petitioner-plaintiff-appellee.

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

FRANK, Circuit Judge.

I. The Defendant Landowner's Appeal.

1. Rule 71A(h), together with Rule 53(e) (2) gave the judge authority to reject, in part, a finding of the Commissioners if "clearly erroneous" and to modify their award accordingly. He was not obliged to, although he had discretion to, remand their report to the Commissioners for a revised finding.

2. It is obvious to us, and it was to the judge, that, in valuing the property, the Commissioners (despite their statement that they took all pertinent factors into consideration) relied primarily on reproduction-cost-new less depreciation. The judge, in his excellent opinion, properly rejected such a valuation. We think his revised valuation is amply supported by the evidence, and that it is not "clearly erroneous."

We think it immaterial that, in revising the Commissioners' findings as to "severance" and rental values, the judge did not explicitly state that they were clearly erroneous. We think his revised findings are amply supported by the evidence.

3. On June 11, 1952, when the Government filed the first Declaration of Taking, it deposited $300,000 with the district court. On December 4, 1952, when the Government amended its Declaration of Taking, it deposited another $200,000 with the court. On January 28, 1953 the district judge vacated 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 based on this estimate which was never filed. Instead, the Government filed the Declaration of Taking which contained an estimate of only $300,000 as the value of the property taken. The trial judge, in making his order vacating the Declaration, disregarded the amended Declaration increasing

234 F.2d 415
the estimate of value to $500,000, because the Government had not obtained his permission to make the amendment

The $500,000 deposited on December 4, 1952 with the court by the Government remained so deposited. On May 12, 1953 the Government filed a second Declaration of Taking containing an estimate of just compensation in the sum of $500,000. Appellant's motion to vacate this Declaration of Taking was denied. On December 28, 1953 the Government deposited another $142,000. On March 7, 1955, after the final order of the district court was rendered, the Government deposited an additional $118,778.35.

The trial judge awarded appellant interest in the following amounts:

Interest on $760,778.35 from December 27, 1951 (the date on which the Government entered into possession) to June 10, 1952.1

Interest on $460,778.35 from June 11, 1952 to December 4, 1952.2

Interest on $260,778.35 from December 5, 1952 to December 27, 1953.3

Interest on $118,778.35 from December 28, 1953 to March 7, 1955.4

The amount allowed by the court below as interest was calculated to the time at which the Government deposited the various amounts with the court. No interest was allowed with respect to the amounts so deposited. Under the statute, 40 U.S.C.A. § 258a, interest is not to be allowed on so much of the value of the condemned property as has been deposited with the district court by the Government pursuant to its filing of a Declaration of...

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37 practice notes
  • United States v. 15.3 ACRES OF LAND, ETC., Civ. A. No. 5051.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • August 15, 1957
    ...1948, 172 F.2d 80, at page 82. Where an improper legal theory is adopted, see United States v. 44.00 Acres of Land, etc., 2 Cir., 1956, 234 F.2d 410, at page 414. Interpretations of written documents do not have presumptive validity. Eddy v. Prudence Bonds Corp., 2 Cir., 1947, 165 F.2d 157,......
  • United States v. 70.39 Acres of Land, Civ. No. 1506-SD.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • July 10, 1958
    ...F.2d 255; United States v. 53¼ Acres of Land, D.C.E.N.Y.1941, 40 F. Supp. 348; United States v. 44.00 Acres of Land etc., 2 Cir., 1956, 234 F.2d 410, 416; United States v. City of New York, 2 Cir., 1951, 186 F.2d 418; United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336; United......
  • Calf Island Comm. Trust v. Young Mens Christian, No. Civ. 302CV462AHN.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 26, 2005
    ...so where the estimated value of the condemned property was made by the government in bad faith. See United States v. 44.00 Acres of Land, 234 F.2d 410, 415 (2d Cir.1956). The defendants here do not allege that the government acted in bad faith in determining the amount of estimated just com......
  • United States v. Twin City Power Company of Georgia, No. 16743.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 16, 1958
    ...justified in concluding the protracted litigation with findings of his own. United States v. 44.00 Acres of Land, supra, 2 Cir., 234 F.2d 410, certiorari denied Odenbach v. United States, 352 U.S. 916, 77 S.Ct. 215, 1 L.Ed.2d 253 F.2d 205 The Government argues that due process requires the ......
  • Request a trial to view additional results
37 cases
  • United States v. 15.3 ACRES OF LAND, ETC., Civ. A. No. 5051.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • August 15, 1957
    ...1948, 172 F.2d 80, at page 82. Where an improper legal theory is adopted, see United States v. 44.00 Acres of Land, etc., 2 Cir., 1956, 234 F.2d 410, at page 414. Interpretations of written documents do not have presumptive validity. Eddy v. Prudence Bonds Corp., 2 Cir., 1947, 165 F.2d 157,......
  • United States v. 70.39 Acres of Land, Civ. No. 1506-SD.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • July 10, 1958
    ...F.2d 255; United States v. 53¼ Acres of Land, D.C.E.N.Y.1941, 40 F. Supp. 348; United States v. 44.00 Acres of Land etc., 2 Cir., 1956, 234 F.2d 410, 416; United States v. City of New York, 2 Cir., 1951, 186 F.2d 418; United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336; United......
  • Calf Island Comm. Trust v. Young Mens Christian, No. Civ. 302CV462AHN.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 26, 2005
    ...so where the estimated value of the condemned property was made by the government in bad faith. See United States v. 44.00 Acres of Land, 234 F.2d 410, 415 (2d Cir.1956). The defendants here do not allege that the government acted in bad faith in determining the amount of estimated just com......
  • United States v. Twin City Power Company of Georgia, No. 16743.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 16, 1958
    ...justified in concluding the protracted litigation with findings of his own. United States v. 44.00 Acres of Land, supra, 2 Cir., 234 F.2d 410, certiorari denied Odenbach v. United States, 352 U.S. 916, 77 S.Ct. 215, 1 L.Ed.2d 253 F.2d 205 The Government argues that due process requires the ......
  • Request a trial to view additional results

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