United States v. Delano Park Homes, 77.
| Decision Date | 29 December 1944 |
| Docket Number | No. 77.,77. |
| Parties | UNITED STATES v. DELANO PARK HOMES, Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Bernard L. Bermant, of New York City, for appellants.
John C. Harrington, of Washington, D. C., for appellee.
Before L. HAND, AUGUSTUS N. HAND and CHASE, Circuit Judges.
This is an appeal from a judgment, condemning land for the use of the War Department, near the Town of Hempstead, Nassau County, New York, and awarding compensation; the only question is the amount of the award. The objections to this are three: (1) that the judge appraised the property upon the basis of temporary market conditions: i. e. the difficulty, pending the war, in procuring building materials; (2) that, in the light of the assessed value of the property, the award was "grossly unfair"; (3) that the testimony of an expert witness was allowed to stand, after it appeared upon cross-examination that he had in part based his appraisal upon sales made to the United States under the shadow of condemnation. The property had been plotted for small suburban residences, and some of the adjoining property of which the lots in question were a part, had already been built upon. The "declaration of taking" was filed on December 21, 1942, the judgment of condemnation was entered on March 17, 1943; and from April, 1942, onwards it had been impossible to obtain building materials without obtaining a "priority" from the proper authority. "Priorities" were not given for building within a mile of the airfield to which the condemned lots were adjacent, and of which they were to form a part. Hence it was impossible, while the system of "priorities" remained in force, to use the lots for their intended purpose. The first question was and is whether this should be a factor in appraising the lots for condemnation. The petitioner's witness figured it as a serious depressant and made his appraisal accordingly; the defendant's expert disregarded it (that being the legal position on which the defendants stood); although he did testify that, if it were considered, it would reduce his appraisal by one third. Even after that correction is made, the two appraisals were far apart. The petitioner's expert appraised the lots at $3750; the defendants' at a little less than $12,000. From the last amount it would be proper to deduct about $1200 for the removal of the "top soil" from half the acreage; but even so, the appraisal of the defendant's expert would remain at about $10,800. The court awarded $4140.
We cannot agree that the judge should have refused to consider the effect of "priorities." Nobody suggests that an owner whose land is not condemned, has any claim upon the United States because he cannot employ it profitably until the system ends. Yet to appraise the land without any deduction for a period during which it will bring in no income, is to reimburse the owner pro tanto; a discount measured by commuting the losses, de die in diem, is necessary to avoid putting into a preferred class owners whose lands happen to be condemned, as against those who must bear the deprivation without relief. Otherwise condemnation will prove a bonanza. The defendants have been unable to discover a shred of authority to bear out their pretension, except Judge Mayer's decision in National City Bank v. United States, D. C., 275 F. 855, and Judge Peck's in C. G. Blake Co. v. United States, D. C., 275 F. 861. Both of these do seem to do so; and we affirmed the first in 281 F. 754, and the Sixth Circuit affirmed the second in 279 F. 71. However, we regarded ourselves as bound by the findings of the trial judge, and did not pass upon the merits. The per curiam opinion of the Sixth Circuit leaves us a little uncertain how far they accepted this part of Judge Peck's reasoning. In each case the district court had assimilated the situation to that of a case where the market is upset by temporary variations of supply or demand, and where it is indeed true that the immediate prices are not the proper measure of value. Certainly, when an owner can hold his property until the market recovers, it is unjust to allow him only current prices, for presumably he will wait for a recovery before disposing of his goods. Whether the same reasoning applies when he cannot wait,...
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