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UNITED STATES v. 25.4 ACRES

April 10, 1946

UNITED STATES
v.
25.4 ACRES OF LAND IN BOROUGH OF BROOKLYN, KINGS COUNTY, N.Y., et al. SAME v. 53 1/4 ACRES OF LAND IN BOROUGH OF BROOKLYN, KINGS COUNTY, N.Y., et al.



The opinion of the court was delivered by: BYERS

These proceedings are before the Court pursuant to an order of December 6, 1945, whereby they were consolidated for trial and decision, touching the claims of the Brooklyn Union Gas Company and the Consolidated Edison Company of New York for awards of damages asserted by reason of the taking, as alleged, by the petitioner-plaintiff, of the special franchises, easements and property of the respective claimants, being gas mains and services as to the Gas Company, and electrical ducts, cables and other fixtures as to the Edison Company, lying within the area of the property condemned in connection with the extension of the Brooklyn Navy Yard.

There are no contested issues of fact, decision being required only of questions of law arising from agreed premises.

 As to the Gas Company, the mains were laid and maintained within certain streets, and the services, which were connections to the mains, led from the latter into the various buildings and structures to which gas was supplied for consumption.

 As to the Edison Company, the conduits, ducts, cables, wires and services, etc., were also laid and maintained within streets embraced in the property condemned, with suitable connections to buildings and structures wherein electric current supplied by it was consumed.

 The claimants and their respective predecessors built and maintained the said several appurtenances in the streets in question under franchises duly granted by the former City of Brooklyn, which were in full force and effect at the respective dates of the vesting of title pursuant to Declarations of Taking, namely, April 1, 1941, as to M-494 and September 19, 1941, as to M-586, and on such respective dates the said appurtenances were all in full and unrestricted operation. About 78 acres of land in all were embraced in the two proceedings.

 The original petition (April 1, 1941) in M-494 described the property to be acquired in the following language:

 'VI. That the estate in said land which the United States of America intends by this proceeding to acquire for the public hereinbefore stated is an estate in fee simple absolute subject only to existing public utility easements, if any, and intending to include all improvements thereon and all rights, easements and appurtenances thereto, except removable fixtures, which rights and easements may affect adjoining lands.'(Italics supplied)

 By an amended petition filed on behalf of the Government on September 18, 1941, paragraph VI of the original petition was modified to read as follows:

 'VI. That the estate in said land which the United States of America intends by this proceeding to acquire for the public use hereinbefore stated is an estate in fee simple absolute and intending to include all improvements thereon and all rights, easements and appurtenances thereto, except removable fixtures, which rights and easements may affect adjoining lands, free from all covenants and restrictions whether public, private or legislative.'

 The amended petition in M-586 (September 18, 1941) reads:

 'VI. That the estate in said land which the United States of America intends by this proceeding to acquire for the public use hereinbefore stated is an estate in fee simple absolute and intending to include all improvements thereon and all rights, easements and appurtenances thereto, except removable fixtures, free from all covenants and restrictions, which rights and easements may affect adjoining lands.'

 Thus the amended petitions were consistent with a governmental purpose to acquire the franchises of these claimants to the extent that they constituted an element of the property condemned, other than removable fixtures.

 The questions which require decision seem to be:

 1. What law governs this controversy?

 2. What is the nature of the claimants' property which is the subject of these claims?

 3. If it is real property, or an interest in real property, what is the measure of just compensation therefor?

 The answer to the first question is free from doubt; clearly the law of the State of New York controls, since the title to property is a matter of substantive law, see:

 United States ex rel. T.V.A. v. Powelson, 319 U.S. 266,at page 279, 63 S. Ct. 1047, 1054, 87 L. Ed. 1390, where the Court says: 'Though the meaning of 'property' as used in Sec. 25 of the Act (T.V.A. Act) and in the Fifth Amendment is a federal question, it will normally obtain its content by reference to local law.'

 See also: United States v. Becktold Co., 8 Cir., 129 F.2d 473, at page 477; United States v. 19.86 acres of land in East St. Louis et al., 7 Cir., 141 ...


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