United States v. Glanat Realty Corp., 144

• Decision Date: 15 March 1960
• Docket Number: Docket 25804.,No. 144,144
• Citation: 276 F.2d 264
• Parties: UNITED STATES, Appellee, v. GLANAT REALTY CORP. and Eastern Suffolk Concrete and Asphalt Corp., Appellants.
• Court: U.S. Court of Appeals — Second Circuit

276 F.2d 264 (1960)

UNITED STATES, Appellee, v. GLANAT REALTY CORP. and Eastern Suffolk Concrete and Asphalt Corp., Appellants.

No. 144, Docket 25804.

United States Court of Appeals Second Circuit.

Argued January 13, 1960.

Decided March 15, 1960.

Albert H. Buschmann, Jamaica, N. Y., for appellant Eastern Suffolk Concrete & Asphalt Corp.

Julius Winn, Sherman & Goldring, New York City, for appellant Glanat Realty Corp.

S. Billingsley Hill, Atty., Dept. of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., Harry T. Dolan, Sp. Asst. to the Atty. Gen., Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before HAND, HINCKS and WATERMAN, Circuit Judges.

HAND, Circuit Judge.

These appeals are to review awards of compensation for the condemnation of easements above real property owned by two corporations in Suffolk County, New York. We shall speak of the Eastern Suffolk Concrete and Asphalt Corp. as "Eastern Suffolk" and the Glanat Realty Corp. as "Glanat." The only issue on the appeal is whether the awards, made by Inch, J., after a trial without a jury, were too small. That made to "Eastern Suffolk" was $8,572; that made to "Glanat" was $3,778, both with interest.

When the Air Force Base in Suffolk County was originally constructed in 1942, it had a "runway," 5,000 feet long, which was extended by 2,000 feet in 1953, and for which the Air Force acquired, not only the right to the runway, but an easement over the land several thousand feet beyond its end, allowing airplanes to pass free from obstructions in the air space above a "glide angle plane": i. e., a plane rising at a prescribed increasing height beyond the end of the runway. In 1957 the Air Force decided to extend the runway by 2,000 feet, and found it necessary to clear the land in the "approach zone" from all obstructions of every kind. To do so it lowered by twenty-five feet the "glide angle plane" easement of 1953, but did not include the right of planes to pass through the space below the former "glide angle plane." To free from obstruction the space between the old and the new "glide angle planes," it was necessary to cut off the tops of seven hills that intruded above the new "plane," and on May 1, 1957 the Air Force filed a "taking" of the "perpetual right to remove, to raze, to destroy and to prohibit * * * structures * * * land, hills * * * and other materials * * * extending above the approach glide surface," together with other ancillary privileges not necessary to set forth.

The soil removed from the hilltops contained gravel and sand that was useful in the manufacture of concrete and asphalt, and that, as it lay in place, had a value and could be sold by the cubic yard. By 1955 "Eastern Suffolk" had a plant in operation a short distance away from the premises in question in which it made concrete and asphalt, for which the gravel and sand could be obtained from the land subject to the easement. "Glanat" owned two of the seven hills that intruded into the new "glide angle plane." Judge Inch awarded compensation based on the decrease in value of the land, caused by the lowering of the "glide angle plane," as estimated by the Air Force's expert witness, Smith, a real estate dealer who lived in the vicinity. He computed the awards on the values of the land, if used for building purposes. He assumed that the new easement (that of 1957 (depreciated some parts of land made subject to it by eighty per cent and other parts by two and a half per cent, and he made no added allowance for the loss of the gravel and sand contained in the soil taken from the intruding hilltops, which the Air Force, disregarding a request of "Eastern Suffolk," used to level the extension of the runway. Both appellants insist that this soil was their "personal property," to which the Air Force was not entitled under the terms of the "taking," and that an independent award should have been made for it. They also challenge the value fixed for the land subjected to the increased burden of the 1957 easement. We shall first consider the argument that there should have been an allowance for the gravel and sand carried away and used as "fill" for the extension of the runway.

We agree that after the hilltops had been cut off and the soil had been pushed aside, it and the gravel and sand it contained became personalty, but that seems to us irrelevant because the right to "remove" its components was condemned while the soil was still in situ. The seizure of course entitled the owners to compensation for the components, but their value was included in the difference between the value of the land before the "taking" and its value thereafter. Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236; Georgia Kaolin Co. v. United States, 5 Cir., 214 F.2d 284, 286. It goes without saying that any known contents of land will be an element of its value before the soil is displaced, and will form a part of its value if it is condemned; but we can see no reason why when, as here, the contents remain undisturbed at the time of "taking," it is necessary to compute the value in two parts. We do not mean that it would necessarily be improper so to compute the value, but that method has been discountenanced, not only in Georgia Kaolin v. United States, supra, but in United States v. Meyer, 7 Cir., 113 F.2d 387, 397 and United States v. Certain Parcels of Land, 5 Cir., 149 F.2d 81, 82, as likely to introduce speculative factors. At any rate in the case at bar the Air Force's expert repeatedly testified that in his opinion the value of the land for residential purposes was greater than for any other purpose; and, if that is correct, the value of the gravel and sand in situ was immaterial.

The...