United States v. 72.35 ACRES OF LAND, ETC., C. P. No. 101.

• Decision Date: 16 April 1957
• Docket Number: C. P. No. 101.
• Parties: UNITED STATES of America, Petitioner-Plaintiff, v. 72.35 ACRES OF LAND, MORE OR LESS, IN the TOWN OF BROOKHAVEN, SUFFOLK COUNTY, NEW YORK, and Wading River Properties, Inc., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

150 F. Supp. 271

UNITED STATES of America, Petitioner-Plaintiff, v. 72.35 ACRES OF LAND, MORE OR LESS, IN the TOWN OF BROOKHAVEN, SUFFOLK COUNTY, NEW YORK, and Wading River Properties, Inc., et al., Defendants.

C. P. No. 101.

United States District Court E. D. New York.

April 16, 1957.

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

Bernard Katzen, New York City, for defendants Louis Hodor, Harry Lerner, Samuel Feldman and Stella Levy, Julius Kahn, New York City, and Frederick I. Levy, New York City, of counsel.

INCH, Chief Judge.

This condemnation action was commenced on November 25, 1955, to acquire the fee and easements hereinafter identified for use by the Government in constructing thereon part of a guided missile installation. The lands involved are all located in the Town of Brookhaven, Suffolk County, New York. On the 26.40-acre fee parcel (A-100) were to be erected three small buildings and control towers to serve the radar instruments used in such a site. The remainder of the lands to be used in this project were already owned by the Government and were located some 3,000 feet to the south. The easements taken were to prevent obstructions in the way of buildings, structures or trees from intruding into the path of the radar beams emanating from the instruments to be located on the fee parcel. These easement tracts are identified as Tracts A-100-E-2; A-100-E-3; A-100-E-4; A-100-E-5, and generally radiate from the fee parcel in an easterly, southerly and westerly direction. The obstruction easement designated as A-100-E-2 involves an area of 20 acres; A-100-E-3—9.54 acres; A-100-E-4—4.95 acres and A-100-E-5— 6.6 acres. The taking also involved two access road and utilities easements in Tract A-100-E-1 and Tract A-102-E, which comprised areas of 2.85 acres and .16 acres, respectively. The fee taking involved 26.4 acres; the obstruction easements involved a total area of 41.09 acres, and the access road and utilities easements involved a total of 3.01 acres.

The land taken in fee and all of the easements, with the exception of Tract A-102-E, consisted of part of a larger parcel of approximately 276 acres of wooded, unimproved land. Tract A-102-E consisting of .16 acres, involved a small segment (75' × 100') of a former right-of-way of the Long Island Railroad Company and now claimed to be owned by the Long Island Lighting Company.

The owners of the larger parcel also owned a 16-acre parcel separated from the larger parcel by lands of the Long Island Lighting Company and abutting Highway 25-A. The Government's taking did not invade the smaller tract and it does not appear that its value is involved or has been impaired by the property taken.

The lands involved in the fee and easements appropriated were generally rough, wooded and marked by sharp grades and comparatively high knolls. The elevation near the northerly boundary of the property was 20' above mean sea level and rises to about an elevation of 216' on the parcel taken in fee. With the exception of Tract A-102-E, the lands involved in the fee and easements appropriated are located in the interior of the large parcel of which they formed a part, about 2,200 feet from the northerly boundary and 1,200 feet from its southerly boundary. No road frontage was taken, although the ownership included approximately 5,000 feet on North Country Road,—a secondary highway. The land involved had never been cultivated, cleared or used for any purpose as far as the evidence disclosed. Much of the land not involved and lying to the south of the taking had been cleared and cultivated in whole or in part in the past. The evidence disclosed that the soil content was of a sand and gravel texture and inferior for the growing of crops.

It was conceded that the best and probably the only use which could be made of this land was for future residential subdivision. There were thousands of acres of land so adaptable in the vicinity and lying to the north and south, which were susceptible and adaptable to such use, when and if the market and demand warrant subdivision and the construction of homes. Apparently in the past and as of the taking date, subdivision and housing developments on neighboring lands were negligible, although a considerable number of parcels had been recently sold in the immediate vicinity to investors or speculators.

The obstruction easements taken are unusual and uncommon, due to the peculiar utility which they serve and are apparently identified solely with a guided missile project. Cf. United States v. 29.40 acres, D.C.D.N.J.1955, 131 F.Supp. 84. They are, however, very similar in their character to obstruction easements which have been taken by the Government around airfields and airbases; in fact, the language employed in both types of easements is almost identical. United States v. 4.43 acres, D.C.N.D.Texas 1956, 137 F.Supp. 567; United States v. 48.10 acres, D.C.S.D.N.Y.1956, 144 F.Supp. 258; United States v. 26.07 acres, D.C. E.D.N.Y.1954, 126 F.Supp. 374. For all practical and legal purposes, the same judicial construction should obtain. Regardless of nomenclature such easements impose but one impediment or restriction upon the owner's use of his land and that is to limit the height to which he may construct a building or other structure or permit natural growth to grow. The obvious purpose of the easement is to preserve inviolate the integrity of the airspace defined by a plane or surface above the land, through which radar impulses or beams pass to perform the function required of a guided missile installation. The height of this plane or surface above the land varies with the contour of the land and the inclination or declination, of the plane described and through which the radar impulses pass. In this case the evidence disclosed that the height of the plane above the land surfaces involved and which the Government seeks to protect against obstruction, ranges from a low point of 25 feet to a maximum of 95 feet. The only point where the elevation reaches 25 feet above ground level is in a small area of the southwest corner of Tract A-100-E-4 and the height of the plane throughout the areas involved is adequate for the normal and prevailing construction of homes or other structures, which it can reasonably be assumed might be erected in the future, or which were permitted by local zoning (Residence "B"-35 Feet). It must be borne in mind that it is the super-adjacent airspace above the land and not the surface of the land which is restricted by such easements and only to the extent of the impairment or limitation of such use should compensation be required to be paid for such easements. Cf. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; United States v. 48.10 acres, supra; United States v. 26.07 acres, supra.

While the impairment of the owner's utility of the lands involved in the obstruction easements is not substantial, due to prevailing height limitations of existing zoning and typical construction, nevertheless a property right has been taken and for which compensation must be paid in terms of estimated depreciation in market value attributable to the taking. The extent of the depreciation or damage is, of course, speculative, due to the absence of adequate experience in the market, reflected by sales of land on which such easements have been imposed. Such precedents as we have, however, furnish some guide under comparable situations. United States v. 26.07 acres, supra; United States v. 48.10 acres, supra.

On Tract A-100-E-1, comprising 2.85 acres, the easement taken involved the Government's right to use the...