United States v. Benedict, 94.

• Decision Date: 18 January 1922
• Docket Number: 94.
• Citation: 280 F. 76
• Parties: UNITED STATES et al. v. BENEDICT.
• Court: U.S. Court of Appeals — Second Circuit

280 F. 76

UNITED STATES et al. v. BENEDICT.

No. 94.

United States Court of Appeals, Second Circuit.

January 18, 1922

Wallace E. J. Collins, U.S. Atty., of Jamaica, N.Y., and Henry J Walsh, Asst. U.S. Atty., of Brooklyn, N.Y. (Howard W. Ameli Asst. Atty. Gen., of counsel), for the United States.

John F O'Brien, Asst. Corp. Counsel, of New York City (Charles J. Nehrbas and Edward J. Kennedy, Jr., both of New York City of counsel), for City of New York.

Seibert & Riggs, of New York City (William H. Seibert and Royal E. T. Riggs, both of New York City, of counsel), for Langley Estate.

For opinion below, see 270 F. 267. See, also, 271 F. 714.

Writs of error to a judgment entered after trial with jury waived. Defendant in error (who will be hereafter referred to as the Langley Estate) owned in 1918 a considerable body of land, consisting both of upland and land under water, in the county of Kings and city of New York, and extending, according to the Langley contention, from First avenue, Brooklyn, to the pierhead line in the waters of New York Harbor. It was separated into two parts, one extending from the center line of Fifty-Eighth street to the corresponding line of Fifty-Ninth street, and the other from the southerly line of Sixty-Third street to a point 118 feet north of the center line of Sixty-First street. The area of the whole property was, as found by the court below, 1,714,322 square feet.

The property had been in the Langley family for many years, but defendant in error held title by virtue of the will of William C. Langley, deceased, which conferred a power upon this defendant in error and his predecessors in office in the following words: 'I hereby authorize and empower my said executors and trustees and their successor and successors to sell at their discretion as to the time and terms, and at public or private sale, all and every part of my real estate, and to execute and deliver all necessary and proper assurances and conveyances for the same to the respective purchasers thereof.'

In assumed compliance with this power the trustees of the Langley Estate for the time being conveyed on April 25, 1899, to the city of New York as much land as was necessary to continue (through the Langley property) Sixty-First, Sixty-Second, and Sixty-Third streets to (as the deed stated) 'the New York Bay.' Such conveyance was executed, not only in pursuance of the testamentary power aforesaid, but of section 992 of the Charter of the city of New York (Laws 1901, c. 466), which provides in substance that 'the owners of land * * * within the lines of any street * * on the * * * plan of the city of New York, and comprising all the land within said lines in an entire block in extent, may ' convey the same free of encumbrances to the city. If the city accepts such conveyance it 'shall become vested with the title to said lands to the same effect and extent as if they had been acquired' in a condemnation proceeding for street purposes. After such conveyance 'the lands fronting on that portion of the streets so conveyed, and extending to the center of the block on either side of such portion of said street as conveyed' shall not be chargeable (in effect) with any assessments consequent upon the 'opening the residue or any portion of the residue of such street.'

From 1899 to 1918 the streets in question remained unopened, in the sense that they were not used as highways. The entire property was not improved as a water front; some filling was done by which the area of land above water was somewhat increased, but whether by 1918 the process of filling had been extended to the bulkhead line as then authorized is a matter not specifically found by the lower court. On April 6, 1918, the United States acquired title to one of the above-stated parcels of Langley realty, and at a slightly later date to the other parcel; such acquisition being by virtue of what is known as the Lever Act of 1917 (40 Stat. 276 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 1/8e-3115 1/8kk, 3115 1/8l-3115 1/8r)), whereof the important section is the tenth (section 3115 1/8ii), as follows:

'That the President is authorized, from time to time, to requisition foods, feeds, fuels, and other supplies necessary to the support of the army or the maintenance of the navy, or any other public use connected with the common defense, and to requisition, or otherwise provide, storage facilities for such supplies; and he shall ascertain and pay a just compensation therefor. If the compensation so determined be not satisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined by the President, and shall be entitled to sue the United States to recover such further sum as, added to said seventy-five per centum, will make up such amount as will be just compensation for such necessaries or storage space, and jurisdiction is hereby conferred on the United States District Courts to hear and determine all such controversies.'

Pursuant to that statute the Executive appointed a commission for the purpose of ascertaining and paying a 'just compensation for what had been taken or requisitioned,' which included all that the Langley Estate had conveyed to the city of New York in 1899. The governmental commission determined that just compensation was $1,796,522.20, with interest at 5 per cent. from May 1, 1918. This was in effect a determination that the property was worth $1.10 per square foot, and that the Langley Estate was entitled to be paid at that rate for all of the land except so much as lay within the limits of Sixty-First, Sixty-Second, and Sixty-Third streets 'if projected between the westerly line of First avenue and the high-water line' as shown on the plan attached to the city's deed. The area of these street beds as above described was found to be 81,120 square feet.

This award was not satisfactory to the Langley Estate, in that (1) $1.10 per square foot was not enough; and (2) the city's title to the street beds was recognized in reduction of its acreage. Therefore this suit was brought, pursuant to the act of Congress above set forth.

The United States was originally the sole defendant, and on its motion the court below ordered that the city be 'brought in as a party defendant' and that a supplementary summons issue accordingly. Such summons issued; an amended complaint was filed, in which it was alleged that the city, 'by reason of the alleged deed' above referred to, claimed an 'interest either substantial or nominal in the streets hereinbefore referred to adverse to that of the plaintiff. ' The city appeared and answered, asserting title in itself in said streets and in an area of 81,120 square feet, and prayed for the dismissal of the complaint, and for 'such other and further relief as to the court may seem just and proper.'

The trial court (270 F. 267) determined (by formal findings of fact and conclusions of law) that the fair and reasonable value, and therefore just compensation, for what the United States had taken, was $3,428,644, or at the rate of $2 per square foot. It further found that the value was the same, 'whether or not the city of New York held title to the lands within' the streets heretofore mentioned, but that the above referred to conveyance of April 25, 1899, was void, wherefore the title to the entire property taken was in Langley Estate, and to it should be awarded the entire recovery. To judgment accordingly both the United States and the city of New York took writs of error.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

Defendant in error suggests rather than asserts that this court has no jurisdiction, because the statute intended, when it gave to the District Court power to 'hear and determine,' that the determination of that tribunal should be final. We do not so read United States v. Pfitsch, 256 U.S. 547, 41 Sup.Ct. 569, 65 L.Ed. 1084 (Sup. Ct., June 1, 1921). On the contrary, we think it was there plainly held that Congress intended, in section 10, to preserve the right to a jury and to create a cause of action governed by the 'usual procedure of a District Court in actions at law for money compensation. ' That such usual procedure gives rise to a final decision, over which (under Judicial Code, Sec. 128 (Comp. St. Sec. 1120)) this court 'shall exercise appellate jurisdiction' seems especially plain.

The writ taken by the United States-- under guise of objecting (1) to certain evidence; and (2) to the allowance of interest-- really complains of the size of the award. It is not denied that, since the only contest between the Langley Estate and the nation was the value of what the latter had taken, the one thing incumbent upon the plaintiff to prove was the fair and reasonable market value of this land. Further, it is admitted that there were no actual sales of similar property within reasonable limitations of time and contiguity upon which to base decision. The only possible evidence was that of experts; i.e., persons who had studied the pecuniary possibilities of large lots of land abutting upon the waters of New York Harbor.

As matter of law, expert testimony under even far less extreme circumstances than those just stated is admissible, as we held in Shields v. Norton, 143 F. 802, 74 C.C.A 254. Under law too well settled to require citation, the finding of the court below in an action at law, where a jury has been duly waived, has all the force of a verdict, and it is sufficient on this point to say that none of the opinion evidence...