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UNITED STATES v. 26.07 ACRES

November 29, 1954

UNITED STATES of America, Petitioner-Plaintiff,
v.
26.07 ACRES OF LAND, MORE OR LESS, IN THE TOWN OF HEMPSTEAD, COUNTY OF NASSAU, STATE OF NEW YORK, and Jacob Gellman, et al.



The opinion of the court was delivered by: INCH

This condemnation proceeding originally involved more than seventy parcels of real estate in the vicinity of Mitchell Field. The Government has taken some of the parcels in fee, and it has taken so-called 'avigation easements' over certain other parcels not taken in fee. All the claims have been settled with the exception of the taking of avigation easements over six parcels, namely, tracts numbered 234, 236 and 238, located in a residential zone, and tracts numbered 305, 306 and 308, located in an industrial zone.

Title was vested in the Government by the filing of a declaration of taking on June 26, 1952, so that it is as of that date that the valuation of the avigation easements taken over the above enumerated parcels must be fixed.

 The avigation easement appropriated by the Government is described in the declaration of taking as a 'perpetual and assignable right of way and easement in and over' the above parcels and others 'which lie within a clearance zone having the shape and location described in Schedule 'C' [attached to the declaration of taking] for the establishment and use of a glide angle plane for the flight of aircraft at an angle of fifty to one with the ground; including the continuing right in the United States to cut timber, remove buildings, and clear the zone of any and all obstructions extending above the glide angle plane and including the right of ingress and egress to and from the land to effect and maintain the necessary clearance; reserving however, to the land owner, and his heirs and assigns, all such rights and privileges as may be used and enjoyed without interfering with or abridgement of the easement acquired by the United States.'

 After the taking of testimony was completed the Government was permitted, with the consent of all parties, to amend the original declaration of taking by filing an amendment thereto on August 24, 1954 which corrected the description of the easement as to the starting point, but this error in the original description did not materially affect the issue of just compensation or the testimony given by the various witnesses at the trial.

 The easement which the Government has taken in the airspace over the defendants' property is in the nature of a runway approach zone for landing and take-off purposes to the northwest-southeast runway at the Army Air Base at Mitchell Field.

 The heights at which the easement crosses the various parcels is indicated on a project map (Govt. Exh. No. 1) and are substantially as follows for the parcels involved herein:

 
Parcel 234 -- 32 feet
 
Parcel 236 -- 32 feet
 
Parcel 238 -- 36 feet
 
Parcel 305 -- 33 to 36 feet
 
Parcel 306 -- 32 to 38 feet
 
Parcel 308 -- 32 to 36 feet

 Therefore, the heights to which buildings or structures can be erected on these parcels by present and future owners are limited to the above measurements.

 According to the zoning map (Govt. Exh. No. 6) Parcels 234, 236 and 238 are located in Residential Zone 'B' where the maximum building limitation is 2 1/2 stories or 45 feet. However, all the witnesses agreed that the highest and best use of these parcels would be the typical dwelling in this area, i. e. a one or one and one-half story ...


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