United States v. CERTAIN LANDS, ETC.

• Decision Date: 15 June 1950
• Docket Number: No. 9932.,9932.
• Citation: 183 F.2d 320
• Parties: UNITED STATES v. CERTAIN LANDS IN CITY OF NEWARK, N. J., etc., et al.
• Court: U.S. Court of Appeals — Third Circuit

183 F.2d 320 (1950)

UNITED STATES v. CERTAIN LANDS IN CITY OF NEWARK, N. J., etc., et al.

No. 9932.

United States Court of Appeals Third Circuit.

Argued October 13, 1949.

Decided June 15, 1950.

Arthur E. Dienst, Newark, N. J., for appellant.

G. Dixon Speakman, Newark, N. J. (Toner, Speakman & Crowley, Newark, N. J., on the brief), for appellees.

Before BIGGS, Chief Judge, KALODNER, Circuit Judge and FEE, District Judge.

KALODNER, Circuit Judge.

Dissatisfaction with the amount of compensation awarded in the court below as "just" for the taking of a leasehold by the United States is the source of this appeal. The only issue raised is whether the learned trial judge applied the evidence submitted to him in such a way as to have committed reversible error.

On February 13, 1946, the United States, exercising its sovereignty and pursuant to 40 U.S.C.A. § 258a, upon a Declaration of Taking and deposit of $650,000, condemned the title in fee simple to the office building known as the Globe Indemnity Building at 20 Washington Place, Newark, New Jersey. Since then, the "just compensation" for the building has been determined and settled and the court below has been concerned with the distribution of the fund to various parties in interest. One of such parties is the appellant, Martin Tittman, who at the time of the condemnation was a tenant in possession operating a luncheonette in an area consisting of approximately 507 square feet at the westerly end of the Halsey Street corridor on the first floor of the Globe Indemnity Building. Tittman's lease, which was originally executed on November 29, 1944, and which he acquired by assignment from the original lessee in October, 1945, was due to expire on November 30, 1947, without right of renewal. The United States required Tittman to vacate, and he in fact vacated the premises on March 29, 1946. Quite clearly, the remaining nineteen months of the leasehold were appropriated by the United States, and it is for this remainder that Tittman seeks "just compensation". United States v. Westinghouse Electric & Manufacturing Co., 1950, 70 S.Ct. 644.

The total rental provided for in the lease was $85.00 per month. Upon the evidence submitted, the trial court concluded that the market value of the remaining term was $1926.60. This sum, less the rent reserved, $1615, i. e., $311.60, constitutes the amount awarded to Tittman and which he now contests as inadequate.

Tittman acquired the lease involved from his assignor as part of a transaction, in August, 1945, whereby he purchased from his assignor the luncheonette on the premises. For the price of $5500 Tittman received the equipment, stock, good will and business, a limited guarantee of minimum business, a promise on the part of the seller not to engage in a similar business within 700 yards of the premises for three years, and a promise on the part of the seller to aid Tittman in obtaining either a new lease or the consent of the owner to the assignment of the existing lease. At the time of the purchase, the luncheonette was grossing about $500 per week, but soon after Tittman took over, the gross sales increased to $625 per week, upon which Tittman realized a net return of $100 per week.

The law is clear and settled that since the entire balance of Tittman's leasehold interest was taken, "The measure of damages is the difference between the value of the use and occupancy of the leasehold for the remainder of the * * term * * * less the agreed rent which the tenant would pay for such use and occupancy." United States v. Petty Motor Co., 1946, 327 U.S. 372, 381, 66 S.Ct. 596, 601, 90 L.Ed. 729. And despite Tittman's testimony that he would have earned $8400 in the remaining months of tenancy due him under the lease, ...