United States v. 48.10 ACRES OF LAND, ETC.

Citation144 F. Supp. 258
PartiesUNITED STATES of America, Petitioner-Plaintiff, v. 48.10 ACRES OF LAND, MORE OR LESS, SITUATE IN THE TOWN OF NEW WINDSOR, COUNTY OF ORANGE, STATE OF NEW YORK, and Mary B. Moroney, also known as Mary B. Maroney, et al., Defendants.
Decision Date15 August 1956
CourtU.S. District Court — Southern District of New York

Harry T. Dolan, Sp. Asst. to the Atty. Gen. of the United States, for petitioner-plaintiff.

Arthur O. Maharay, Jr., Newburgh, N. Y., for defendants Robert S. Finley and Dorothy O. Finley.

J. R. Thompson, Newburgh, N. Y., for defendant Mary B. Moroney.

Burns F. Barford, Albany, N. Y., of counsel, for defendants.

KNOX, District Judge.

In these condemnation proceedings, instituted on May 23, 1955, the Government has acquired avigation easements over three parcels of land within the Town of New Windsor, Orange County, New York. Two of them are owned by Mary B. Maroney, and the other by Robert S. Finley and Dorothy O. Finley. The Declaration of Taking was filed on June 2, 1955.

In addition, the Government, for the purpose of the extension and improvement of Stewart Air Force Base, a large and active military installation, which is about three miles from the subject properties, has acquired the fee of several parcels of land adjoining, or close by, the properties affected by the easements. One of them is a 28 acre piece of land formerly belonging to the Finleys, and another is three fourths of an acre, owned by Maroney. The sums paid therefor were agreed upon by the parties, and are not before me.

The easement over the Finley parcel is identified as A109-E, and covers approximately 12 acres. It is a portion of a farm which, before the taking of the 28 acres in fee, contained 104 acres.

The two other parcels affected by the easements are designated as A108-E1 and A108-E2. They aggregate about 36 acres, and are a part of a 70 acre farm belonging to Maroney.

The rights and interests acquired by the United States are described in the Declaration of Taking as follows:

"3. The estate hereby taken for said public use consists of the following rights in and over the tracts of land described in Schedule `A':
"(1) The continuing perpetual right to cut to ground level and remove trees, bushes, shrubs, or any other perennial growth or undergrowth infringing upon or extending into or above the Glide Angle Plane as described in Schedule `Z'.
"(2) The continuing perpetual right to cut to ground level, remove, and prohibit the growth of such trees, bushes, shrubs, or any other perenial growth or undergrowth which could in the future infringe upon or extend into or above the Glide Angle Plane as described in Schedule `Z'.
"(3) The right to prohibit the future construction of buildings or other structures from infringing upon or extending into or above the Glide Angle Plane as described in Schedule `Z'.
"(4) The right of ingress to and egress from and passage on and over said tract to effect and maintain the necessary clearances.
"Reserving, however, to the landowners, their heirs, executors, administrators, successors, and assigns all right, title, interest and privileges as may be exercised and enjoyed without interference with or abridgment of, the easement and rights hereby taken for said public uses."

The average height limitations for constructions or growths upon the lands is approximately 85 feet. However, surrounding a high hill on the Finley lands, such limitations are much below the average. The height of the hill accounts for the low elevations of the easements. At points, there are no more than 15 to 20 feet.

On the road frontage along Drury Lane, the limitations range from 90 to 110 feet.

The glide angle plane, in this suit, extends westerly from the westerly end of one of the runways of the Stewart Air Force Base, and passes over the condemned lands.

The ultimate question before me is the compensation that should be paid to the owners of the aforesaid properties for the rights and interests specifically described and limited by the language used in the Declaration of Taking. Such compensation should represent the diminution in market value, if any, of these lands, which is due to the impairment of their utility.

The landowners contend that the Government, by taking these easements, has appropriated their air rights, and that they should have just compensation therefor. It is also contended that substantial damages should be awarded inasmuch as anticipated flights of aircraft over the lands will be at low levels. These, it is said, will cause fear, noise and vibration, and be productive of psychological effects upon persons residing on the premises. Such easements, it is argued, will seriously impair the utility of the lands for residential occupation. In support of these points of view, reliance is primarily based on United States v. Causby, 1946, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206.

The rights taken by the Government may be described as obstruction easements. They are limited by the language used in the Declaration of Taking and, in and of themselves, do not include the right to fly aircraft over the lands of the condemnees.

As was held in United States v. 4.43 acres of land, etc., D.C., 137 F.Supp. 567, 569, the interest acquired "has but one function, insofar as these condemnation proceedings are concerned, and that is to serve as the ceiling over the land in question beyond which obstructions or structures may not be allowed to extend upward into the adjacent air space. Its nomenclature is unimportant." The Court further said that, by such easements, the Government did not acquire, and should not be required to pay compensation, for damages to the lands resulting from the flights of aircraft. The easements there acquired, as here, were limited to the prevention of obstructions or structures on the land extending into the air space above the "glide angle plane."

In the Causby case, supra, the factual and legal situation differed entirely from the one at bar. In that litigation, there had been no formal taking, or appropriation, of any right or estate in the land involved. The evidence established that the Government, by its frequent low level flights of aircraft, with attendant noise, vibration and bright lights at night, had destroyed the utility of the real estate for chicken raising, and had, in fact, destroyed many of the chickens. The Court ruled that, under such circumstances, there had been a taking of private property for public use, and that, consequently, appropriate compensation therefor should be made. Proof showing the loss in utility and value of the premises was abundant.

Here, more than a year has elapsed since these easements were taken, and, so far, at least, flights of aircraft over the lands have not impaired their utility.

The burden of proof in establishing the damages suffered, as a result of the imposition of the easements, rests upon the owners, and not upon the Government. Westchester County Park Commission v. United States, 2 Cir., 1944, 143 F.2d 688, certiorari denied, 323 U.S. 726, 65 S.Ct. 59, 89 L.Ed. 583.

Any loss, or depreciation in value, incident to the low level flights of aircraft over the premises has to do with the future, and is not to be considered here. Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; United States v. 4.43 acres, supra.

As is usual in cases of this character, the real estate appraisers are in sharp disagreement.

The only testimony taken at the trial was that of two real estate men, Hume F. Flynn, for the landowners, and Rendick Meola, for the Government. Each side conceded the competency of the witness of the other.

Flynn's testimony showed that the original 104 acre farm of the Finleys was about equally divided; 54 acres on one side, and 50 acres on the other, of Drury Lane, a macadam county road, which runs in a northerly and southerly direction. On the easterly side of the Lane, where the easements have been taken, the land rises sharply from the grade of the road, and in some places, as much as 20 to 30 percent. The farm dwelling, and its outbuildings, are to the south of the lands just mentioned, and are not covered by the easements.

Prior to the condemnation, Klinkowise Brothers, who had acquired lands to the east of those of Finley, and about an eighth of a mile away, commenced a real estate development for residential purposes. They built ten or twelve houses, and did so rather recently. Half of them were more of a summer type. The others were for year round occupancy. Their values ranged from $7,500 to $17,000, or thereabouts. Flynn made five sales in that vicinity. He also negotiated contracts for the building of homes on the property. However, he advised Klinkowise Brothers to cease operations when it was rumored that the Government was about to condemn land in that neighborhood.

The Klinkowise development is much different from anything that could be brought about on the lands under discussion. The owners had created a large lake to which purchasers of the plottage had access for bathing, and other recreational purposes. In this respect, the property was not, as Flynn admitted, comparable to the Finley and Maroney lands.

The Finley land, on which the easement has been imposed, has a frontage of 1,800 to 2,000 feet on Drury Lane, and a depth of 275 feet or more.

Drury Lane connects with State Route 207 on the south, and it has an entrance to Stewart Air Force Base. Route 17K is to the north. This route connects with the New York State Thruway, which is distant about three and one half miles.

Flynn testified that at or near each end of Drury Lane, which is approximately two and one half miles in length, there is a real estate development. Near the southerly end, a man by the name of Gaston built several houses. He added that land development has been creeping up Route 207 from Newburgh, and from the Stewart Field entrance, and has also been creeping west on 17K. Close by the junction...

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