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June 20, 1944


The opinion of the court was delivered by: KNIGHT

The individual defendants move to set aside awards made by Commissioners appointed by this Court for damages and compensation for certain premises taken by the petitioner through condemnation proceedings. The petitioner moves for a confirmation of these awards.

The premises described in the Declaration of taking consist of one parcel of land consisting of 75.198 acres, referred to in the proceedings as Tract T-1; one consisting of 3.1774 acres, referred to as Tract T-2; and 2.2548 acres (a 40 foot strip) lying along the westerly side of tracts T-1 and T-2, referred to as Tract T-3. It appeared that title to the last-mentioned parcel was vested in the County of Erie for highway purposes, and it was stipulated that this parcel be omitted from these proceedings and the Declaration of taking amended accordingly.

 The Commissioners fixed the amount of damages and just compensation at $ 97,738.18 for Tract T-1 to be paid to the defendants, Albert Phillips and Eugene Phillips, as their interests therein appear, and the amount to be paid to the defendants, Edward Phillips, an infant, and others, as their interests appear, for Tract T-2, at $ 5,626.72.

 The said defendants seek to set aside the aforesaid awards both upon the ground that they are inadequate and on the ground that the Commissioners applied improper rules of law in arriving at the amount of such awards.

 The rule of law with respect to the right of the Court to change an award of Commissioners, such as in these proceedings, and the basis for such rules are clearly established by many decisions of the courts. The right of the Court to review is very limited. The language of the Supreme Court in Columbia Heights Realty Co. v. Rudolph, 217 U.S. 547, 560, 30 S. Ct. 581, 586, 54 L. Ed. 877, 19 Ann.Cas. 854 (condemnation), is plainly in point here. The court there said: 'The power of the court to review the award * * * must, * * * , be limited to plain errors of law, misconduct, or grave error of fact indicating plain partiality or corruption. The jury saw and heard the witnesses; the court did not. The jury went upon and viewed the premises; the court did not. The duty to review did not involve mere error in judgment as to the extent of enhancement in value, for the judgment of the jury manifestly rested upon much which could not be brought before the court. The jury was expected to exercise its own judgment, derived from personal knowledge from a view of the premises, as well as from the opinion evidenced which might be brought before them.' Citing Shoemaker v. United States, 147 U.S. 282, 13 S. Ct. 361, 37 L. Ed. 170. Vide also: St. Bernard Cypruse Co. v. United States, 5 Cir., 65 F.2d 711; United States v. Certain Lands in the Town of Highlands, D.C., 36 F.Supp. 971; United States v. Certain Land situate in Wayne Co., State of Mo., D.C., 40 F.Supp. 792; Matter of Corporation Counsel of City of New York, 188 App.Div. 668, 177 N.Y.S. 318; Matter of City of Rochester, Smith St. Bridge, 234 App.Div. 583, 255 N.Y.S. 801, and numerous cases there cited.

 In the instant case a very considerable amount of evidence was submitted to the Commissioners. Numerous witnesses testified and comprehensive drawings and other exhibits were introduced in evidence. The Commissioners, as was their right, were liberal in the reception of testimony. They were not bound by strict rules in this respect. Two of the Commissioners were appointed by this Court as being specially qualified because they were real estate dealers. The Commissioners viewed the premises; the court did not. The Commissioners saw and heard the witnesses; the court did neither. Several witnesses were called as experts on land values, and, as often appears, there was wide variance in their estimates, varying from $ 800 to $ 1500 per acre, as testified to by petitioner's experts to $ 2400 to $ 3500, as testified to by defendants' experts, as to Tract T-1, and from $ 3602.40 to $ 9741 as to Tract T-2. The testimony of none of the experts was binding on the Commission. It was advisory. The Commissioners were not restricted to any species of evidence but were entitled to use any information which they acquired, from an inspection of the premises, as well as on the evidence produced on the hearing. United States v. Certain Lands, D.C., 36 F.Supp. 971, supra; United States v. Four Parcels of Land, D.C., 20 F.Supp. 306; Burnett v. Central Nebraska Public Power & Irrigation Dist., 8 Cir., 125 F.2d 836.

 This Court has read all of the evidence submitted and examined the various exhibits and maps used in connection therewith. The defendants have submitted well-prepared briefs upon the law and detailing and comparing the proofs with respect to value.

 The lands in question are situate on Cayuga Street, in the Town of Cheektowaga, Erie County, New York, and located some two miles distant from the city line of the City of Buffalo, New York. Tract T-2 is within the confines of Tract T-1, and formerly they constituted a single tract.

 Commencing in 1925 and down to and including 1929, the City of Buffalo acquired numerous parcels of land, aggregating 540 acres, for a municipal airport, extending from Genesee Street, in Cheektowaga, New York, to and bounded on the west by Tract T-1 and other parcels of land, and on the east by the Curtiss-Wright Corporation plant lands. The airport has been operated continuously since 1926. In or about 1940 the acquisition of the land by or on behalf of the Defense Plant Corporation, a Maryland corporation organized as an aid to the war effort, was begun, for the purpose of leasing it to the Curtiss-Wright Corporation and building a plant for the Curtiss-Wright Corporation, for the manufacture of airplanes. This acquisition was continued down to and including the year 1942. The total acreage so acquired was approximately 294, and all of this, except 28.028 acres (including nine acres owned by Curtiss-Wright Corporation) accumulated as one tract, was north of Genesee Street, Cheektowaga, and immediately adjoining on the east the said Buffalo Municipal Airport. The Buffalo Airport is extensively used, and the large plant of the Curtiss-Wright Corporation engages thousands in employment. The lands so acquired by the Defense Corporation are leased to the Curtiss-Wright Corporation for a number of years with the right of renewal under certain conditions and a conditional option of purchase.

 The premises in question here were acquired by the U.S. War Department for the purpose of the erection thereon of a so-called modification building to be used in connection with the Curtiss-Wright Corporation plant. Since the Buffalo Municipal Airport lands lie between the Curtiss-Wright Corporation plant lands and the parcels in question, in order to utilize this so-called modification building, it is necessary for Curtiss-Wright to use runways crossing the Municipal Airport.

 Upon the so-called parcel T-1 there were no buildings. It formerly had been used as farm lands in connection with parcel T-2 on which were located a dwelling, barn and other buildings. The evidence discloses that in the assembly of the lands of the Buffalo Municipal Airport, and the Defense Corporation purchased for the use of the Curtiss-Wright Corporation, many different prices were paid, and that there was a great variance in the price on an acre basis. In 1925 and 1926, the city purchased 163 acres at the average cost of $ 575 per acre and 314 acres at average cost of $ 958 per acre. The highest purchase paid by the city was $ 1000 per acre in 1929, and this was for 36.74 acres strategically located for the Airport. The Defense Plant Corporation commencing in 1940 and continuing until 1942 paid the low price of $ 435 an acre for one parcel to a high of $ 5,591.59 per acre paid the city for 12.49 acres by the Defense Plant Corporation. From May, 1940, to September, 1940, the purchase prices ran from a low of $ 415 to $ 3039 per acre for tracts of considerable acreage. Some reason for the great disparity of these prices can be seen in the particular locations of the various parcels and in the exigencies which necessitated speed in the production of war materials. It appears difficult to reconcile many of the prices paid for land in the different assemblies on the basis of market value. The most plausible explanation for the variances is that the parcels were urgently wanted, and they were bought without regard to the real value to the owner. The criterion is not what the value is to the purchaser, but rather to the seller. Boston Chamber of Commerce v. Boston, 217 U.S. 189, 30 S. Ct. 459, 54 L. Ed. 725; Campbell v. United States, 266 U.S. 368, 45 S. Ct. 115, 69 L. Ed. 328.

 Unless it is found that the Commissioners should have and did not take into consideration the prices paid for the lands purchased by the Defense Corporation and the Curtiss-Wright Corporation in 1942 or failed to apply the proper rules of law in fixing values, the awards must be affirmed.

 The defendants contend that the Commissioners ignored the prices paid for the land purchased by the Defense Corporation and the Curtiss-Wright Corporation in the year 1942. The government has asserted that these purchases were to be considered within the rule making the prices paid within the boundary of an entire development project of the government incompetent in establishing the values of this particular acquisition. United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336; Re Five Tracts of Land v. United States, 3 Cir., 101 F. 661; Pennsylvania Co. v. United States, 6 Cir., 223 F. 759.

 All the purchases in 1942 either by Curtiss or Defense Plant Corporation were south of Genesee Street, save two parcels, one of 4.54 acres conveyed by Kubera to the Defense Corporation and one of 12.49 acres conveyed by the City of Buffalo to the Defense Plant Corporation. However, the Defense Plant Corporation conveyed to the City of Buffalo 1.6 acres off from the aforesaid 4.54 acres. All of the 1942 purchases were in close proximity of the main operating building of the Curtiss-Wright Corporation and on Genesee Street. Genesee Street is a continuation of one of the principal streets in Buffalo, New York. All of the valuation experts in great detail gave testimony regarding the values of the 1942 purchases and the particulars as to the reasonableness of or the reason for the price paid. The Commissioners said: 'From the testimony it appears that the prices of the Curtiss Acquisition North of Genesee Street varied from a low of about $ 435.00 per acre * * * to upwards of $ 5000.00 per Acre, * * * the adjusted average was testified to be $ 1811.00 ...

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