The opinion of the court was delivered by: ABRUZZO
This proceeding has been brought by the United States of America to acquire 53 1/4 acres of land, more or less, and the improvements, rights and interests of all persons having an estate or interest therein, in the Borough of Brooklyn, County of Kings, States of New York, for the extension of the United States Navy Yard, New York.
The property taken consisted of Wallabout Market, a public market owned and operated by the City of New York under the jurisdiction of the Department of Markets of the City.
The petition in condemnation herein was filed on April 1, 1941, together with a declaration of taking containing a description of the land sought to be acquired. With the petition and the declaration of taking, there was deposited with the Registry of this Court the unallocated sum of $4,000,000, to be distributed to the persons entitled to it pursuant to the provisions of the Declaration Taking Act, 40 U.S.C.A. § 258a.
Title in fee simple vested in the United States of America, the petitioner-plaintiff, on April 1, 1941, and a judgment was duly entered on that date directing the possession of the property be delivered immediately to the United States of America.
The proceeding for the taking of the above described land having been held before this Court, jurisdiction vests properly in it to make such further orders, judgments or decrees as it may deem necessary.
The defendant, Brooklyn Eastern District Terminal, hereinafter referred to as the Terminal, appeared and served an answer to the petition herein. Its answer sets forth a claim for compensation by reason of the appropriation of its property rights in Lots Numbers 1, 2, 3, 46, 188, 189, 190, 191, 192, 193, 194, 198 and 201, as they appear on the Damage Map, dated March 4, 1941, filed in this proceeding.
By notice of motion, dated June 6, 1941, returnable before this Court July 2, 1941, the Terminal applied for an order directing the Clerk of this Court to pay to it the sum of $700,000 or such amount as to the Court shall seem just and proper, out of the money deposited in the Registry of this Court on account of the just compensation to be awarded to the Terminal pursuant to Section 258a of 40 U.S.C.A.
It is conceded by all of the parties herein that the Court has power to grant a preliminary award in any amount that it might deem just and proper.
In view of the issues raised upon the return of this motion instituted by the Brooklyn Eastern District Terminal by the City of New York, hereinafter referred to as the City, it was impossible upon the affidavits before the Court to properly determine this matter. Whereupon, it was directed that the issues be set down for trial so disposition of them could be effected. The order directed that the following constituted the triable issues:
1. The construction interpretation and legal effect of all agreements, contracts, leases or franchises existing between the City of New York and the Brooklyn Eastern District Terminal, having relation to the property or any part of the property condemned or taken in this proceeding.
2. The nature, quality, character and legal effect of all estates, rights, interests or claims arising out of and by virtue of such contracts or agreements.
3. The particular rights, interest, estates and property claimed to have been taken, condemned and appropriated in this proceeding and for which compensation is claimed and demanded.
Therefore, these matters came on for trial on June 9, 1942, and after trial, the Court directed that briefs be filed by all parties in interest.
In order to envision a comprehensible picture of this particular proceeding, it will be necessary to summarize the partinent facts involved.
The defendant, Brooklyn Eastern District Terminal, which has brought the present motion, is a domestic freight terminal company duly incorporated under Article 10-a of the Transportation Corporations Law, Laws 1911, c. 778, in November of 1915, and now under Article 8 of the same law, Consol.Laws N.Y. c. 63 in which was merged the Brooklyn Eastern District Terminal, incorporated June 22, 1908, as a navigation corporation, and the East River Terminal Railroad.
It was organized to supply, maintain and operate freight terminal facilities -- including docks, wharves, bulkhead, basins, tugs, floats, lighters and other shipping and wharfage and lighterage for the receipt, delivery, storage and handling of freight, and so forth, and was situated at what is commonly known as the Wallabout Market, the area of acquisition.
The Wallabout Market property was originally acquired by the City of Brooklyn from the United States of America. When it was consolidated with the City of New York in 1897, the latter succeeded to the title thereto. Under the terms of the original grant, the property in question was to be held in trust and used solely for and as a public market.
Prior to its agreement with the City, the Terminal maintained and operated freight terminals in the boroughs of Brooklyn and Queens, and as an originating and delivery carrier, transported railroad cars on car floats between its terminals and the terminals of all the trunk line railroads in the City.
On November 16, 1935, the Terminal made an agreement with the City (defendant's Exhibit 6). This agreement was authorized by a resolution adopted by the Board of Estimate and Apportionment of the City of New York on October 25, 1935. It was executed by the Mayor of the City of New York and attested by the City Clerk pursuant to said resolution.
This agreement granted the Terminal the right and privilege to build, provide and maintain the necessary float bridge, tracks and track appurtenances to properly equip the Wallabout Market with a public freight terminal and operate the same for the benefit of the public and other railroad corporations for the period of ten years upon certain terms and conditions. In consideration of the rights and privileges permitted, the Terminal agreed to build, install and maintain and operate certain specified inprovements usually required in freight terminals to pay the City as compensation the sum of One ($1) Dollar for each loaded car received at the Wallabout Market other than cars consigned to the United States Navy Yard, and other than market produce cars of less than 28,000 pounds in billed weight, together with a sum equal to all track storage charges accruing to the Terminal pursuant to any track, storage, tariff, rule or regulation from time to time in force.
The Terminal claims to have expended in the construction of said terminal more than $110,244.47, the cost as adjusted was decreased to $101,351.77. Other sums were invested in car floats which were necessary for the Terminal to operate in the market proper. Thereafter, and until the investing of title of this area in the United States of America, the Terminal was operated and maintained in accordance with the aforementioned agreement.
The Terminal now seeks compensation for the value of the physical property taken by the United States of America by the power of eminent domain in the sum of $62,629.11 and for the estimated value of the remainder of the term of the agreement amounting to $776,958.88, or a total of $839,587.99. This includes the profits which the Terminal ...