The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a proceeding in condemnation, to acquire a leasehold interest.
It was instituted on August 14, 1942, by the filing of a notice and petition and the granting of an order of immediate possession.
The subject property, in which the leasehold was acquired, consists of 5.741 acres of land and improvements thereon, located at the corner of Jewel Avenue and Park Drive East in the Borough of Queens, City and State of New York.
There was located on this property a three-story stucco over frame golf clubhouse, and a one-story stucco over frame partly field stone caddy house.
On the 28th day of December, 1942, there was filed in the registry of this Court a Declaration of Taking No. 1, pursuant to the provisions of Section 258a, Title 40 U.S.C.A., and a deposit, as required by law, made, for the use and occupancy of these premises for the period of June 3, 1942, through June 30, 1943, and upon the depositing of the said money in Court, an estate for the period of June 3, 1942, through June 30, 1945, in the property vested in the Government subject to cancellation by Government on June 30, 1943, or on June 30, 1944.
It has been stipulated in writing between Counsel for the Government, and the claimant, that the government did not go into possession of the subject premises until July 21, 1942, and that the Government's liability for rent should not come into being for a period prior to July 21, 1942.
The issue tried, and to be determined by me, is the fair value of the rental of these premises on an annual basis.
This property was formerly used as a golf clubhouse, and golf clubhouse grounds.
The house was specially designed and constructed in 1928, to serve the special use required in this particular activity.
In 1938 it ceased to be a golf clubhouse, when the greens were torn up, and the sod sold, and some 50 acres of the golf club property were turned into a parking lot, and it has not been used as a golf club since the destruction of the greens, and its use as a parking lot in 1938.
One thing in particular we must not lose sight of, and that is that in this proceeding the Government is not taking the fee, but, only use and occupation, and therefore, while the value of the land and buildings thereon are important for consideration, they are not conclusive. What the Government took in the premises in question is equivalent to a leasehold, and it is the annual fair rental value per annum, which I am required to find.
Experts have been called by both sides, and they sharply disagree in the estimates of value.
It is true that the premises in question were used by the City of New York, as a temporary City Hall, and some improvements have been made therein, but, when I viewed the property, on June 19, 1943, a considerable time after the taking by the petitioner-plaintiff there was evidence of a prior bad condition, especially as to the shoring up which had been required and also as to the condition of the stucco at some points, and I believe the testimony of Sergeant Robert M. Farish, who was in charge of the maintenance, construction and repair of the property on ...