The opinion of the court was delivered by: GALSTON
This is a motion by the Jones Beach State Parkway Authority (hereinafter referred to as the 'Authority') to vacate and set aside a Declaration of Taking, pursuant to Section 258a, 40 U.S.C.A., filed by the United States, and the accompanying deposit in the amount of $ 50,000, or, in the alternative, to direct the United States to file an amended Declaration of Taking, increasing the estimate of the value of the property taken and the amount of the deposit made with the court.
The Government instituted condemnation action against the land in question on September 26, 1955, by filing a notice and complaint. Paragraph 3 of the complaint alleged that the 'Secretary of the Air Force has requested that an order of court be procured granting to the United States of America immediate possession of said lands upon the filing of this complaint'; and the complaint contained a prayer that 'an order of this court be made and entered forthwith granting * * * immediate possession * * *.' On September 27, 1955 an ex parte order was made and entered, granting to the United States the immediate possession and exclusive use and occupancy of the lands sought to be acquired 'for the purposes as set forth in the complaint in condemnation.' The affidavit of Harry T. Dolan, Special Assistant to the Attorney General of the United States, states that immediately upon the institution of the action and entry of the order of possession on September 27, 1955, the Government entered into possession, use and occupancy of the lands involved, and has proceeded to construct an extension of an existing airfield runway, clearance zone, and other improvements (not described) necessary and incidental to the use of the lands as part of the Mitchel Field Air Force Base. According to the affidavit, at the present time the construction and improvements made by the Government on said land have been ninety-nine percent completed.
There was deposited with the court by the United States, the sum of $ 50,000 as 'estimated just compensation,' recited and set forth in the Declaration of Taking. The property in question was part of a parcel of approximately 200 acres acquired from the Meadowbrook Club by the Authority in May, 1953 and September, 1954. It was acquired by the Authority for parkway and park purposes in connection with the extension of the Meadowbrook State Parkway.
From the affidavit of Robert Moses, President of the Authority, and the exhibits annexed thereto, it appears that a series of negotiations took place prior to the purchase by the Authority from Meadowbrook between the Authority and the United States respecting the proposed extension of the Meadowbrook State Parkway. In a letter, dated May 22, 1952, to the Secretary of the Air Force, Mr. Moses suggested that it was logical for the Air Force to take the opportunity to enlarge and to round out Mitchel Field while the Parkway right-of-way was being acquired. A letter dated June 5, 1952 in reply was received by Mr. Moses from the Assistant Secretary of the Air Force, reading, in part, as follows:
'This matter has been given most careful consideration; however, the presence of residential and industrial areas immediately adjacent to Mitchel Air Force Base already limits aircraft operations, and no further expansion of air operations at this Base is possible. Accordingly our plans for Mitchel do not provide for its physical expansion.'
Again, in a letter from the Office of Under Secretary of the Air Force, dated July 9, 1952, it was stated:
'Despite the almost complete absence of buildings in this recreational area, the residential and developments in other areas surrounding the air base are so restrictive as to render impracticable further expansion of air operations of the installation. * * * The Air Force does not anticipate future physical expansion of the air base.'
The Moses affidavit states that inasmuch as the Air Force had represented that it would not enlarge the air base, the Authority proceeded, in 1953 and 1954, to acquire from the Meadowbrook Club 200 acres of land for parkway and park purposes, including approximately 128 acres bordering on the Mitchel Field Air Force Base. The affidavit also states that there were located on the 128 acres, nine holes of the Club's golf course which were not affected by the building of the new parkway extension, and that it was expected the recreational area containing the nine-hole golf course was capable of producing 'substantial revenue.' The affidavit states that the Air Force was advised of the negotiations with the Meadowbrook Club and knew that the Authority intended to and did purchase the 200 acres, including the property involved in this proceeding, from the Club at a cost of $ 6,000 per acre.
During the period of the negotiations with the Meadowbrook Club, the authority also negotiated with the Air Force for a parkway easement through Government property in connection with the parkway extension project. It appears that during the negotiations it was made clear to the Government that the property acquired by the Authority from the Meadowbrook Club and lying between the parkway and the Mitchel Field base would be restricted to park use only. The Authority and Government entered into a written agreement, dated January 4, 1954, whereby the Authority granted to the Government an avigation easement over the Authority's acquired property east of the Mitchel Field base, and, in turn, the Government granted to the Authority a perpetual parkway easement through Government property. Paragraph 2-h of this agreement provided that the property acquired by the Authority from the Meadowbrook Club, and lying between the parkway proper and the Mitchel Field base, would be restricted to park use only, and that
'Any recreational facilities maintained by the Authority shall be made available, without charge, to personnel of the Department of Defense.'
The nine-hole golf course referred to above was included within the area referred to in paragraph 2-h of the foregoing agreement. It further appears that three holes of the nine-hole golf course are on property included within the 51.8 acres involved in the Government's Declaration of Taking.
It is the Authority's contention that the 'estimated just compensation' of the 51.8 acres should be valued at $ 6,000 per acre, or.$ 310,800. Six thousand dollars per acre was the price paid by the Authority to Meadowbrook. Furthermore, the Moses affidavit states that competent appraisers have advised that the destruction of the valuable asset consisting of the nine-hole golf course, by virtue of the loss of the three holes, has resulted in damage to the Authority of not less than $ 200,000. It is contended, therefore, that the Government should deposit the sum of $ 510,800 as 'estimated just compensation.'
The Dolan affidavit, in opposition to the motion, states that the 'estimated just compensation' recited in the Declaration of Taking, in the amount of $ 50,000, 'was predicated and based upon a written appraisal obtained by the Department of the Air Force from a local real estate appraiser, thoroughly qualified to appraise lands in Nassau County, and who has on many occasions appeared as an expert on real estate values before this court, and on several occasions in connection with the valuation of lands forming a part of the Mitchel Air Force Base.' The Dolan affidavit also states:
'9. Since the institution of this action, deponent employed another local real estate appraiser, who has likewise appeared as an expert on real estate values in Nassau County before this Court, to reappraise such interests in the lands herein involved, as were owned by the State of New York at the time of the institution of this action. Deponent has received from said appraiser a written appraisal report covering such interest of The State of New York in the lands herein involved, and the value of the interest of The State of New York in these lands at the time of the taking herein was appraised at a far ...