United States v. 765.56 ACRES OF LAND, ETC.

• Decision Date: 02 June 1959
• Docket Number: No. C. P. 108.,C. P. 108.
• Citation: 174 F. Supp. 1
• Parties: UNITED STATES of America, Petitioner-Plaintiff, v. 765.56 ACRES OF LAND, MORE OR LESS, IN THE TOWN OF SOUTHAMPTON, County of Suffolk, State of New York, and Salvatore Aleci, et al., Defendants. Tracts 211, 212, 216, 218, and 223.
• Court: U.S. District Court — Eastern District of New York

174 F. Supp. 1

UNITED STATES of America, Petitioner-Plaintiff, v. 765.56 ACRES OF LAND, MORE OR LESS, IN THE TOWN OF SOUTHAMPTON, County of Suffolk, State of New York, and Salvatore Aleci, et al., Defendants. Tracts 211, 212, 216, 218, and 223.

No. C. P. 108.

United States District Court E. D. New York.

June 2, 1959.

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

Albert H. Buschmann, Jamaica, for defendant Eastern Suffolk Concrete & Asphalt Corp.

Sherman & Goldring, New York City, Julius Winn (of counsel), New York City, for defendant Glanat Realty Corp.

INCH, District Judge.

Findings of Fact and Conclusions of Law

History of Proceedings

This condemnation action was instituted on April 30, 1957, to acquire the specific easements hereinafter described. On May 1, 1957 an order of possession of said easements was entered and which date, it is not disputed, constitutes the date of taking and valuation of the easements appropriated. United States v. Dow, 1958, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109. As originally instituted, the easements taken involved some 39 separate parcels, comprising an aggregate area of approximately 765.56 acres.

On July 24, 1958, after trial, the court filed its decision fixing the compensation to be paid for the easements taken as to ten parcels. United States v. 765.56 acres, D.C.E.D.N.Y.1958, 164 F.Supp. 942. On January 5, 1959, this court after trial filed its findings of fact and conclusions of law fixing the just compensation for the easements taken as to four additional parcels. Appropriate judgments fixing compensation in accordance with said decision and said findings of fact and conclusions of law were duly entered on August 13, 1958 and January 20, 1959 respectively.

The just compensation for the easements taken as to the remaining parcels, with the exception of those now under consideration, has been fixed and determined by stipulation of the parties and orders of court entered thereon. There remains, therefore, for consideration and determination by the court, the fair value and just compensation which should be paid by the United States for the easements taken insofar as they affect the five above-identified parcels as of May 1, 1957, the date of taking.

Question Presented

The question presented throughout this action and now presented as to the remaining undisposed of parcels is essentially the loss or diminution in the fair market value of the land which has resulted or flows from the nature, character and extent of the estates or interests appropriated by the Government. Differently stated, the just compensation should approximate the difference in the fair market value of the land immediately before and after the easements were imposed by the taking. United States v. 765.56 acres, supra; United States v. 329.05 acres, D.C.S.D.N.Y.1957, 156 F.Supp. 67; United States v. 48.10 acres, D.C.S.D.N.Y.1956, 144 F.Supp. 258; United States v. 72.35 acres, D.C.E.D.N. Y.1957, 150 F.Supp. 271; United States v. 26.07 acres, D.C.E.D.N.Y.1954, 126 F.Supp. 374; 293.080 acres of Land More or Less, Situate in Westmoreland County, Com. of Pa. v. United States, D.C.W.D.Penn.1959, 169 F.Supp. 305.

Nature of Easements Appropriated

(Tracts 211, 212, 216, 218, and 223)

Perpetual and assignable easements and temporary easements for the establishment and maintenance of clearance areas or zones in and over the above identified tracts, consisting of the following rights:

(1) The continuing perpetual right to remove, to raze, to destroy and to prohibit the future construction of buildings or portions thereof, other structures or portions thereof, land, hills, embankments of earth and other materials, infringing upon, extending into or extending above the approach glide surface and/or transitional surface as described in the complaint in condemnation.

(2) The continuing right to top, to cut to ground level, to remove, and to prohibit the growth of trees, bushes, shrubs, or any other perennial growth or undergrowth infringing upon, extending into, extending above, or which could in the future infringe upon, extend into, or extend above the approach glide surface and/or transitional surface as described in the complaint in condemnation.

(3) The right of ingress to, egress from, and passage on the above tracts of land for the purpose of exercising the rights hereinabove set forth.

(4) The temporary right, to continue in effect until July 31, 1958, of access and passage on the above tracts of land for purposes of access to adjoining tracts, including the right to construct temporary roads for such purposes.

(5) Reserving, however, to the landowners, their heirs, executors, administrators, successors and assigns, all right, title, interest and privileges, as may be enjoyed without interference with or abridgment of the rights hereby granted.

(6) Subject to existing easements for public roads, highways and streets, for public utilities and railroads.

Generally speaking, the purpose of such easements is to clear and keep clear from any and all obstructions of whatsoever character, the airspace within the approach zone to runways or airstrips adjacent to airfields and to eliminate the flight hazards which might be created by obstructions of any character extending into the restricted airspace constituting the glide angle plane for such runways. In this instance, the obstruction easements taken had relation to the approach zone to the northeast-southwest runway of the Suffolk County Air Force Base, which is located adjacent to and adjoining the easement area on the southwest. The glide angle plane is a trapezoidal plane extending over the runway approach zone, starting from a line 1500 feet long at its base and commencing at a point 1000 feet northeast of the end of the runway. The base of the trapezoidal plane is 1500 feet wide or 750 feet on either side of the center line of the runway, if projected through the center of the 1000-foot clear zone which is a zone extending 1000 feet from the end of the actual runway and in this instance, in a northeasterly direction. The side lines of the planes are each about 10,000 feet long and extend outward from the base at designated angles, so that the plane grows broader as it proceeds outward from the base. The width of the side lines of the plane are approximately 4000 feet when they reach a distance of approximately 10,000 feet from the base. The base of the plane slopes upward at a rate of one foot vertically for each 50 feet horizontally for a distance of 10,000 feet and reaches an elevation of 200 feet above the ground when it reaches its outward terminal point, starting at ground level at its base. (Govt.Exhs. 15, 16, 17)

Type and Character of Land Under Consideration

The parcels under consideration here are all located in the Town of Southampton, Suffolk County, as is all of the land involved in this condemnation action and about six miles southeast of River-head, the county seat. The court has personally inspected and viewed the land involved in this action on two occasions, including the parcels under consideration, and also viewed this same property when it was the subject of a somewhat similar and comparable condemnation action in 1953. (United States v. 33.99 acres,—C.P. 91—not reported)—(Govt. Exh. 16) With the exception of Tracts 204, 205 and 206, previously disposed of and which involved tillable farmlands, all of the land, including the tracts now before the court, are the typical sandy, unimproved, scrub oak land found so abundantly in this area. The United States Department of Agriculture Soil Survey of Suffolk and Nassau Counties, New York, compiled in 1928 in cooperation with the Cornell University Agricultural Experiment Station and the accompanying maps of the area, classify all of the land under consideration as "Plymouth Sand". The parcels under consideration are located in about the center of an area of this type of soil classification, extending about 2½ miles from east to west and about 1½ miles from north to south. (Govt.Exh. 29) This soil type is described in the official Soil Survey above referred to as "identical in all respects with Plymouth loamy sand except in the presence of a surface soil consisting of sand, with too low a percentage of fine material to give a loamy feel. Plymouth sand occurs in rather extensive areas, the greater part of the south ridge and a large part of the south fluke being occupied by it. Practically none of the land is under cultivation." (Govt.Exh. 29, pp. 26, 27; and attached map of the area with location of the subject parcels identified thereon).

None of the land under consideration had been cleared of natural scrub growth or used for any purpose other than a small area near the southerly boundary of Tracts 211 and 212, where prior to the taking of the easements, a relatively small area had been cleared and some earth removed. The contour of the land was highly irregular. The elevation of the land rose from 100 feet at the southerly boundary to a maximum elevation of approximately 230 feet in the center portion and then gradually descended to an elevation of 100 feet near the northerly boundary. (Govt.Exhs. 2, 21, 29)

Within the parcels under consideration there were seven hills which reached peak elevations of approximately 230 feet above mean sea level. (Govt.Exhs. 1, 2, 21, 29) The presence of these hills and their elevation with relationship to the glide angle plane established by the easements taken necessitated the excavation and removal of that part of the hilltops which intruded into the airspace restricted and prohibited by the easements from any obstructions which might constitute a hazard to the flight of aircraft taking off from or approaching the airstrip or main runway of the Suffolk County Air Force Base as extended and lengthened by the Government in 1957 and 1958. The right to remove these hills or earth obstructions was among the...