United States v. Vater

• Citation: 259 F.2d 667
• Decision Date: 26 September 1958
• Docket Number: Docket 24723.,No. 268,268
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: UNITED STATES of America, Petitioner-Plaintiff-Appellee, v. Carl VATER, Robert Andresen, Ivor B. Clark, Inc., Sidney Zimet, J. George Hacker, Dolores Lyons Ambrose and W.C. Reeves & Co., Inc., Defendants-Appellants.

259 F.2d 667 (1958)

UNITED STATES of America, Petitioner-Plaintiff-Appellee, v. Carl VATER, Robert Andresen, Ivor B. Clark, Inc., Sidney Zimet, J. George Hacker, Dolores Lyons Ambrose and W.C. Reeves & Co., Inc., Defendants-Appellants.

No. 268, Docket 24723.

United States Court of Appeals Second Circuit.

Argued April 18, 1958.

Decided September 26, 1958.

Edgar G. Brisach, New York City, George Schenker, John H. Finn, Edward T. Kelly, New York City, Sidney Zimet, Brooklyn, N.Y., Dolores Lyons Ambrose, Patchogue, N.Y., for defendants-appellants.

Perry W. Morton, Asst. Atty. Gen., Harry T. Dolan, Sp. Asst. to Atty. Gen., Roger P. Marquis, A. Donald Mileur, Attys., Dept. of Justice, Washington, D. C., for petitioner-plaintiff-appellee.

Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.

WATERMAN, Circuit Judge.

This is an appeal by certain condemnees from a judgment of the United States District Court for the Eastern District of New York fixing awards in compensation for the taking by the United States of six parcels of land situated in the Towns of Riverhead and Brookhaven, Suffolk County, New York. It is one phase, hopefully the last, of a condemnation proceeding commenced by the United States in February 1952 to acquire approximately 5,000 acres of land in eastern Long Island for the development and testing of jet aircraft. The entire proceeding has been marked by extraordinary delay, most of which is chargeable to the commission appointed by the district court in December 1953 under Rule 71A(h), F.R.Civ.P. 28 U.S. C.A., for the purpose of determining the issues of just compensation.

The first hearings of the commission, dealing with twelve parcels known as the Bobinski group, produced after fifteen months the initial and only report of the commission, a report which the district court remanded to it for lack of specific findings. The amended report, which was not filed until December 1955, contained findings which the district court set aside as clearly erroneous. The substituted findings of the district court, after two appeals to this court, were eventually upheld in their entirety. United States v. Bobinski, 2 Cir., 1958, 254 F.2d 686; 2 Cir., 1957, 244 F.2d 299.

The hearings on the nine parcels known as the Vater group, six of which are involved in this appeal, were held before the commission between November 1954 and April 1955. Thereafter nothing was heard from it. By March 1956 the district court felt that delay on the part of the commission made it necessary to vacate the authority of the commission to determine just compensation for all parcels on which hearings had not already been held. This was done, and left the commission to make a report on only the nine parcels comprising the Vater group. But no report was forthcoming. In June 1956 counsel for the United States wrote the court, reminding it of the lapse of time since the matter was submitted to the commission. Shortly thereafter the court requested the commissioners to give the matter their immediate attention. Some four months later, on October 10, 1956, the court, having heard nothing from the commission, entered an order on its own motion vacating the reference to the commission which had been made nearly three years before.

Appellants Clark and Reeves, the former owners of parcels 22 and 26 respectively, then filed a motion to vacate the district court's order discharging the commission. In support of the motion their attorney filed an affidavit noting that an appeal was pending at that time in this court with respect to the parcels involved in the first hearing, and stating that the affiant, on October 5, 1956, had requested the commission to delay its report until that appeal had been decided. The United States opposed this motion. It pointed out that the long delay was costly to the United States and unfair to the other condemnees; and that the appeal in the Bobinski case, involving different parcels of land, could not affect the awards on these parcels. As far as appears, the other condemnees took no position on the motion to vacate the order discharging the commission.

On October 29, 1956, the district court held a hearing on the motion to vacate at which all interested parties were given an opportunity to express their views. The court denied the motion to vacate the commission's discharge, adhering to its view that the commission's unexplained and inordinate delay gave the court no alternative. The court then discussed with the parties the proper procedure for terminating the case, suggesting that the court decide the issue of just compensation on the basis on the record made before the commission:

"* * * I want to get this thing so we can decide it. I am not going to drift along. I have tried my best to stop this drift, but I couldn\'t stop it. They the commissioners indicated that they weren\'t going to file any report at all at one time.

"Now we have got down to these nine parcels, and if the evidence that you introduced before the Commission is available and the briefs are available and I have ended the Commission, well, why not take it over, may shouldn\'t I do that and make my decision?"

Although counsel for appellants Clark and Reeves objected to the denial of the motion to vacate, stating that a report by the commission was essential to a fair hearing, he did not request a trial de novo before the court. On the contrary, he stated that a trial de novo would be an unnecessary hardship on all the parties. In short, his position was simply that the district court was powerless to do anything other than resubmit the case to the commission — a commission which, nearly three years after its appointment and eighteen months after the hearings, had failed to file its report, or even to explain its delay to the court. Counsel stated:

"Your Honor, the Commissioners saw the property, they made a report on the prior takings, they have seen the witnesses, they heard the witnesses testify. * * *

"I submit, sir, if there had been no proof taken as to these parcels, there would be no possible objection to your right to recall your order and take the matter before the Court. That was done with respect to other parcels. But I say, sir, that once the matter has gone as far as this has that we are entitled as a matter of law to have the Commissioners submit their report and proceed from there."

The court rejected this position and attempted to find another alternative which would be satisfactory to the parties. What it finally did was to deny in open court appellants' motion to vacate, and it scheduled another hearing at a later date at which the parties could submit anything further, legal argument or proof, as they deemed advisable.

"The Court: * * *

"I am denying the motion to vacate, and I will give you further time, two weeks to add to something which you already have in and which you now wish to put in there, and then this whole matter will be put before me for decision. * * *

"Mr. Finn attorney for appellants Clark and Reeves: Well, as I understand it, we will have a hearing before you at which time we can submit such additional proof as we may deem advisable.

"The Court: Right, right.

"Mr. Finn: Very good, sir.

* * * * * *

"Mr. Dolan: I trust your Honor will not open up this thing to days and days of trial again.

"The Court: Well, I will only open it up for such additional proof as Mr. Finn feels he must present. I am interested in the point that they claim they didn\'t have proper consideration."

Thereafter, on November 2, 1956, the court entered a written order denying the motion to vacate which provided:

"ORDERED that this proceeding is adjourned to November 15, 1956 at 10:30 A.M. for the submission of any further evidence, proof or briefs which any of the interested parties may desire to submit and that thereafter the issues of just compensation affecting parcels 1, 5, 8, 13, 22, 24, 26, 38, and 219 shall be considered and determined by the court upon the evidence previously submitted before the Commission heretofore appointed by the court in this action and as may be submitted by the parties on the adjourned date hereinbefore referred to."

At the hearing on October 29, 1956, in response to repeated inquiries on the part of the court, counsel for two appellants, Ambrose (parcel 219), and Ambrose, Hacker and Zimet (parcel 26), indicated by affirmative statement their satisfaction with the procedure worked out by the court. Appellants Vater and Andresen indicated their consent by their silence. Only appellants Clark and Reeves, by their attorney, indicated dissatisfaction with the court's procedure, and, as stated above, their attorney's position was simply that the court could not under the circumstances discharge the commission.

To some degree appellants took advantage of the opportunity to offer further proof. At the hearing on October 29, the court, at the request of appellant Vater, received further testimony from Miller, an expert witness as to parcel 1, who had previously testified before the commission. In addition, appellant Ambrose, who had failed to offer any evidence before the commission of the value of parcel 219, submitted on November 9, 1956 two affidavits with respect to its value. Neither on October 29 nor on November 15 did the appellants choose to make any further presentation of evidence.

The court then took the case under advisement and thereafter on December 6, 1956, rendered the decision and judgment from which this appeal is taken. The compensation awards as found by the district court were based on the record made by the parties before the commission and on such further evidence as was submitted to the court. Although awards were made with respect to all nine parcels, no appeal was taken as to three, and only six parcels are involved in this appeal. Three questions are presented for our decision: (1) whether the district court erred in withdrawing the case from the...