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April 11, 1947

25.4 ACRES OF LAND et al.

The opinion of the court was delivered by: BYERS

As recited under this title, in D.C., 61 F.Supp. 251, the report of the Commissioners in Condemnation was remitted to them pending the taking of further testimony as stated. Pending the coming in of a supplemental report, decision of the motions to confirm was reserved, except as to damage parcel 1, as to which both sides urged confirmation, and which was accordingly granted.

The supplemental report and all testimony taken subsequently to the earlier report, as well as the earlier proceedings, are now before the Court for final determination.

 The Government moves to confirm except in two respects, and as to them the City moves to confirm, but otherwise to reject. The matters thus in dispute will be treated separately:

 Damage Parcels 5A, 9, and 22A. The first is a strip on the easterly side of Washington Avenue; the second is the bed of Taylor Street; and the third is land under water, being the 40 feet of the southerly part of the bed of Wallabout Basin running easterly from Washington Avenue to Hewes Street. The highways were legally opened and in use, and were subject to public easements in all respects, and were therefore of but nominal value to the City; the third was subject to easements of navigation, the body of water being a navigable tide-water inlet, and the deed of cession from the United States granted in 1870 having reserved free use of the Basin. This is recited in the first report of the Commissioners.

 No substitute facilities having been rendered necessary because of the taking, there is no proof to sustain the fixing of more than nominal damages, and as to these damage parcels the Government's motion to confirm is granted.

 Damage Parcels 5, 10, and 25. These are all embraced in Washington Avenue. The first and third designate the bed of the street itself. Parcel 10 is land under water in the Wallabout Basin, namely, the northerly part, and is bounded on the west by the mouth of the Canal and on the east by the easterly side of Washington Avenue. The City seeks an award of damages because of improvements on, in and under the streets, and substitute facilities required to be provided as a result of the taking.

 The matter of the Washington Avenue Bridge is the first item embraced in this section of the two reports, and no change is made in the later one. The bridge was built with Federal funds (whether in whole or part does not appear) in 1937, and carried Washington Avenue over the Wallabout Channel or Canal, including the car tracks of the trolley line running through Washington Avenue.

 It is not contended that any substitute facility, i.e., a new bridge, had to be built by reason of the taking, and the argument of the City is that this costly structure, of which the reproduction cost less depreciation was shown to be $ 557,984.86, should be compensated to it at more than the salvage value of $ 5,303 which was awarded by the Commissioners.

 In essence, the bridge was a part of Washington Avenue, which itself of course represented a large outlay in surface construction, curbing and the like. If one is to be reckoned as supporting a claim for reimbursement, so should the other.

 The cases are clear, however, that in the absence of proof of the necessity for providing highways to take the place of those subjected to the right of eminent domain, the municipality or the state making claim must be deemed to have failed in its proof.

 United States v. Des Moines County, Iowa, et al., 8 Cir., 1945, 148 F.2d 448, 449, certiorari denied 326 U.S. 743, 66 S. Ct. 56, decides this issue in reversing a decision in which an award had been made in the District Court 'for the taking of said roads and highways, with the bridges, culverts and improvements thereon'.

 It is said: 'If it is unnecessary to replace the roads or to provide substitutes for them, the appellees have suffered no money loss and have been relieved of the burden of maintaining the roads taken.' That the cost of constructing substitute roads will afford to the appellees the actual money loss and is the proper measure of damages for the taking, citing cases.

 The City relies upon United States et al. v. Benedict, 2 Cir., 280 F. 76, to sustain its claim to an award for the bed of the streets which have been taken. There the City was granted participation in an award for a tract of undeveloped property in this District, fronting upon the upper Bay, as to which there had been a cession of title to the bed of streets which had not been physically opened. The Court seems not to have discussed the nature of the City's title when burdened by public easements, nor to have reviewed the holding below that the deed of cession had not been effective to transfer title to the streets as projected. The Commissioners have given consideration to the case, and have held as a matter of law that it is not presently controlling. In that view this Court is of the same opinion.

 It results therefore that no compensation can be awarded to the City for the mere taking of the beds of these streets, nor for so much of the bed of the canal or inlet which is burdened with public easements.

 The City undertook to meet the burden of establishing as to the streets taken that it is entitled to reimbursement for having been called upon to provide substitute highway facilities, namely, the widening of Park Avenue, a thoroughfare running east and west, or at right angles to Washington Avenue; Park Avenue (not shown on the Damage Map) intersects Classon Avenue, above the Navy Yard to the east, whence traffic can move into Kent Avenue and thence to the north as desired. The Commission received all testimony offered on this subject, and the second report recites in summary from that upon which the City relies; the conclusion is that the widening and improvement of Park Avenue was initiated prior to and without reference to the taking of the bed of Washington Avenue, and was carried through as part of a larger plan involving a highway development to connect the Boroughs of Brooklyn and Queens; that while the traffic which would have moved through Washington Avenue, in the Wallabout area, did in fact take advantage of the new route above indicated, yet the widening and improvement of Park Avenue was not designed or intended to provide a substitute highway facility for the taking of the damage parcels in question. That this understanding of the situation is not impaired by the knowledge that in part the closing of Washington Avenue was contemporaneous with the highway developments referred to; and that certain temporary improvements in Park Avenue are not to be segregated from the over-all accomplishment in order to support the City's claim.

 The evidence will be found to sustain this conclusion on the part of the Commissioners. So far as this Court is concerned, the claim of the City is scarcely plausible, when certain of the announcements appearing in press releases are recalled, touching the purposes of the City to provide improved access by motorists to the site of the recent World's Fair held in 1939 near Flushing.

 The widening of Kent Avenue from Washington Avenue to Classon, by 27 feet, was accomplished by the Government, and at its own cost. Thus a substitute street facility has been provided by the taking authority, and the Commission is right in announcing that title to the 27-foot strip is now in process of being vested in the City.

 So much of the report as deals with this aspect of the City's claim, which in effect disposes of the subject as an issue of fact, is here found to be in accordance ...

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