United States v. IMPROVED PREMISES, ETC.

• Decision Date: 16 March 1944
• Parties: UNITED STATES v. IMPROVED PREMISES KNOWN AS NO. 46-70 McLEAN AVENUE IN CITY OF YONKERS, WEST-CHESTER COUNTY, et al.
• Court: U.S. District Court — Southern District of New York

54 F. Supp. 469

UNITED STATES v. IMPROVED PREMISES KNOWN AS NO. 46-70 McLEAN AVENUE IN CITY OF YONKERS, WEST-CHESTER COUNTY, et al.

District Court, S. D. New York.

March 16, 1944.

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

Winthrop, Stimson, Putnam & Roberts, of New York City (Donald H. Aiken and Thomas C. Fogarty, both of New York City, of counsel), for Franklin Sav. Bank.

Arthur J. Doran, of Yonkers, N. Y. (David Friedman, of Yonkers, of counsel), for The Crow Bar, Inc.

BRIGHT, District Judge.

On January 8, 1943, the petition in this condemnation proceeding was filed alleging that it had been determined by the Secretary of the Navy that the immediate use, occupancy and possession of the premises at the above address were vital and necessary for the successful prosecution of the war, and that the estate which it was intended to acquire was the use and occupancy of the premises for a term ending June 30, 1942, with the right during the continuance of the status of war presently existing, and for one year thereafter, to renew such use and occupancy for annual periods, upon the giving of notice of such election of renewal sixty days prior to the expiration of any period. The original petition was filed only against the Franklin Savings Bank, the owner. It was subsequently amended, so as to seek the use and occupancy of the same estate in a part of the premises at the above address, of some portion of which The Crow Bar, Inc., was alleged to have some right, title or interest and it was made a party defendant along with the others above named. Immediate possession was ordered on the same day as the petition was filed and judgment of condemnation was filed on June 9, 1943.

When the question of the award came on for trial, it was announced that the petitioner and the Franklin Savings Bank of the City of New York had stipulated and agreed that the fair rental that should be paid by the Government to those entitled to the use of the premises described and as amended, and for the term stated in the petition and as amended, and the extensions of the term as provided, for which notice of extension was given, shall be at the annual rental of $15,000 per year.

The questions left open for decision were (1) shall the rent be directed to be paid into the registry of this court or direct to the bank, (2) shall the final judgment contain a provision that this court retain jurisdiction of the proceeding until the Government surrenders possession of the premises, so that an award may be made to the bank or its assigns should the use of the premises by the Government cause damage over and above that resulting from natural wear and tear, and (3) whether the defendant The Crow Bar, Inc., is entitled to any compensation in this proceeding.

1. I see no reason why the rental should not be paid direct to The Franklin Savings Bank.

2. I do not think, however, that any provision should be made in the final order and judgment retaining jurisdiction in this court until after the surrender by the Government of the premises. Such a provision, in my opinion, would not be a proper one. This proceeding is only to determine just compensation for the taking. If there is damage arising out of the use of the property and for which the Government would be otherwise liable, it will have to be fixed, in my opinion, in some other proceeding and in some other tribunal.

This point has been decided directly against the owner in United States v. 5.741 Acres in Flushing, D. C., 51 F. Supp. 147-149, and in United States v. 16.747 Acres, D. C., 50 F.Supp. 389-391. The proceeding cannot even be continued against the motion of the Government to dismiss to enable the claimant to prove its damages. United States v. Certain Parcel of Land at Hempstead, D. C., 51 F.Supp. 726. It is well settled that private property shall not be appropriated to public uses unless a full and exact equivalent for it be returned to the owner, that equivalent being the market value of the property at the time of taking cotemporaneously paid-in money. It may be more or less than the owner's investment because the public may not by any means confiscate the benefits or be required to bear the burden of the owner's bargain; it is the property and not the cost of it that is safe-guarded by the constitution. That value does not include compensation for any element resulting prior or subsequent to or because of the taking, nor which is conjectural. Olson v. United States, 292 U.S. 246-255, 256-262, 54 S.Ct. 704, 78 L.Ed. 1236. Conjecture cannot form a legitimate basis for an award of compensation. United States v. Sponenbarger, 308 U.S. 256-265, 60 S.Ct. 225, 84 L.Ed. 230; Canandaigua & Niagara Falls R. R. Co. v. Payne, 16 Barb., N.Y., 273-275; Johnson v. State of New York, 62 Misc. 15-22, 116 N.Y.S. 253, affirmed 151 App.Div. 361, 135 N.Y.S. 496. Matter of Board of Transportation, 248 App.Div. 775-776, 290 N.Y.S. 426; Matter of City of New York (Avenue C), 151 App.Div. 83-86, 135 N.Y.S. 259; Pearson v. Central of Georgia Railway Co., 215 Ala. 239, 110 So. 5-7. That damage in prospect may be caused after the taking because of the use of the property condemned is not a proper element to be taken into consideration in determining the amount of an award. United Power & Light Corp. v. Murphy, 135 Kan. 100, 9 P.2d 658-663; Loomis v. City of Augusta, 151 Kan. 343, 99 P.2d 988-990. The inquiry does not contemplate a recovery in advance for any torts that may subsequently be committed. Items of damage purely remote,...