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May 22, 1957

UNITED STATES of America, Petitioner-Plaintiff,
51.8 ACRES OF LAND, ETC., IN the TOWN OF HEMPSTEAD, COUNTY OF MASSAU, State of NEW YORK, and The People of the State of New York, et al., Defendants

The opinion of the court was delivered by: INCH

This action was commenced on September 26, 1955, to acquire approximately 51.8 acres of land in the Town of Hempstead, New York, adjoining the U.S. Airfield known as 'Mitchel Field', and within 450 to 750 feet of the ends of two of its principal runways. The land was unimproved by buildings or structures and in itself had no road or street frontage. The plot was irregular in shape and was acquired with other land by the State from the Meadowbrook Club in May 1953 and September 1954 for a consideration which computed at $ 6,000 per acre.

For brevity and to avoid confusion, the defendants State of New York and Jones Beach State Parkway Authority will be referred to as 'State' and the United States of America, plaintiff, as 'Government'. The material facts pertinent to this acquisition and the questions presented are not in dispute.

 At the time of the taking and valuation (September 27, 1955), and at the time this action was commenced, the entire parcel was encumbered by certain easements granted to the Government by the State on September 30, 1954 (Govt. Exhs. 5, 13), and restricted as to future use by restrictive covenants running with the land, as imposed by a contract between the State and the Government on January 4, 1954. (Def. Exh. J.) The effect of the easements and restrictions upon the utility and future use of the land for any and all purposes for which it would be normally suitable and available, if unencumbered, and the price which would be paid for land so encumbered, represents the critical questions presented and the basic dispute between the parties.

 It was established that on September 30, 1954, the State granted the Government a so-called 'avigation easement' affecting and encumbering this entire parcel, as well as adjoining lands of the State to the east and south. (Govt. Exhs. 8, 9-13.) This easement, as well as the restrictive covenants as to future use imposed on these lands by contract of January 4, 1954, were granted and imposed in exchange for easements granted the State by the Government for highway purposes through approximately 54 acres of Government-owned land constituting a part of Mitchel Air Base. (Govt. Exhs. 3, 8, 9.)

 The avigation easement granted the Government an easement over all of this land 'for the free and unobstructed passage of aircraft through the airspace above the portions of clear zones, runway approach surfaces, and transitional surfaces * * * situated over the lands so affected and related to the Northwest-southeast, East-west and Northeast-southwest runways of Mitchel Air Force Base. (Govt. Exhs. 8, 9, 11, 13.) The easement further provided that the State would, at its cost and expense, to the extent required by the Commander, Mitchel Air Force Base, clear and keep clear the land encumbered by the easement 'from any and all obstructions infringing upon or extending into the clear zones, runway approach surfaces or transitional zones, situated over the aforesaid easement acres, including the removal of trees or brush and further including the demolition and removal of buildings or any other structures or obstructions infringing upon or extending into or above said portions of the zones or surfaces, whether located on or extending over the said lands described above'. The lands encumbered by this easement included approximately 200 acres of land purchased by the State from Meadowbrook Club in April 1953 and September 1954, and included all of the parcel under consideration.

 It was established that approximately 23.9 acres of the parcel under consideration were situated in the clear zones to the Northeast-southwest and East-west runways of Mitchel Field Air Base and the remaining 27.9 acres in the approach zone to the Northeast-southwest runway. (Govt. Exh. 9.) It further appears that a considerable area of State land adjoining on the south lies within the clear zone of the East-west runway and approximately 30 acres lie in the approach zone to said runway. (Govt. Exh. 9.)

 It was further established that the airspace encumbered by the easement and so restricted as to use by the State, within that portion of the clear zones in the area condemned (approximately 23.9 acres), was that immediately adjacent to the land and extending upward without limitation; whereas, the airspace affected by the easement in the approach zone (approximately 27.9 acres) inclined from the land surface to a maximum height of 25 feet at the easterly boundary of the parcel. (Govt. Exhs. 10, 11.) The variable height of the plane surface above the land in the approach zone results from the variable surface elevation of the land in relation to the incline of the approach plane or surface. (Govt. Exh. 10.) It would appear that the same approximate situation prevails over the lands of the State adjoining on the south, which lie in the clear and approach zones of the East-west runway.

 The obvious purpose of such an easement is to prevent flight hazards both to Government personnel and property engaged in air flights over this land, as well as to public property and civilians. The ultimate object of such easements, whether acquired by exchange, purchase or appropriation, is to vest in the Government or preempt the absolute and unrestricted use of the airspace over and above the plane surfaces constituting the clear, approach and transitional zones of established or projected runways of airfields.

 It should be apparent that it is the abnormal, rather than the normal flight of aircraft approaching or taking off from runways, which avigation easements of this character are chiefly designed to protect and when, because of mechanical difficulties, wind or weather conditions or errors of judgment, the normal flight pattern cannot be maintained. Under such circumstances, it is necessary that the lower reaches of the airspace in the clear and approach zones be restricted and kept clear of obstructions for such emergencies and it is for such purposes that such easements are acquired by condemnation or otherwise. The avigation easement granted by State of New York to the Government is distinguishable from the avigation easements involved in United States v. 48.10 Acres of Land, D.C.S.C.N.Y.1956, 144 F.Supp. 258; United States v. 4.43 Acres of Land, D.C., 137 F.Supp. 567, in that the avigation easement here involved granted to the Government the 'right of flight' of aircraft within the airspace defined in the easement as well as prohibited any obstructions within such areas; whereas, the avigation easements involved in the cases above cited only prohibited obstructions within such airspace. The other distinguishing feature between the instant easement and the easement condemned in the above entitled actions is that the cost of removing obstructions or keeping the airspace clear of obstructions is here assumed by the State or its successors in title, whereas in the cases cited this obligation was assumed by the Government.

 It is obvious that such easements, no matter how acquired, depreciate the land value in direct proportion to the impairment of its utility or availability for use resulting therefrom. United States v. Causby, 1946, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206; United States v. 26.07 Acres of Land, More or Less, in Town of Hempstead, D.C.E.D.N.Y.1954, 126 F.Supp. 374; United States v. 48.10 Acres, supra, cf. United States v. 72.35 Acres of Land, D.C.E.D.N.Y.1957, 150 F.Supp. 271. In view of the established fact that the plane surface throughout the clear zone is at ground level and that in the approach zone the plane varies from zero to 25' above ground level and entirely overlays the entire land surface, it would appear that the utility and value of this land to any prospective purchaser, for any conceivable use, has been severely impaired, if not totally destroyed.

 The land under consideration, as of the date of taking, was further encumbered as to utility and use by the restrictive covenants contained in the agreement of January 4, 1954, between the State and the Government. (Def. Exh. J.) Under paragraph (e) of said agreement, it was provided that the clear zone areas could be sealed off from the State's remaining lands by security fences. In paragraph (f), the State agreed to convey to the Government a perpetual easement for a right-of-way approximately 20' wide for the construction of a storm drain outfall sewer. This easement was granted on September 30, 1954 (Govt. Exh. 5) and extends through the center of the lands condemned from its westerly to its easterly boundaries. (Govt. Exh. 6.) This easement includes the right to construct, operate and maintain a storm water drainage pipe line under and through the land under consideration. Under paragraph (h) of said agreement, no construction could be accomplished or structures erected within the area condemned. Under Paragraph (3) of said agreement it was provided that all the provisions of the agreement 'shall at all times be deemed to be, and should be, continuing covenants running with the land' and 'binding upon the grantees, successors or assignees of the Authority and the People of the State of New York'. (Def. Exh. J.)

 It should be apparent that if the Government were here acquiring by condemnation the rights and interest in this land, which it had already acquired through negotiations, conveyances and contract and in exchange for making available to the State 54 acres of its airfield for the parkway, that it would be required to pay to the State just compensation measured by the loss in 'market value' of this land, attributable to the loss of its future utility and resulting from the encumbrances so imposed. Such has been the judicial pattern and precedents established in the cases heretofore cited. Experience has demonstrated that such claims frequently approximate the full fee value of the land so encumbered even though the future utility is but slightly affected. United States v. 26.07 Acres of Land, More or Less in Town of Hempstead, supra; cf. United States v. 72.35 Acres of Land, supra; United States v. 48.10 Acres of Land, supra.

 The State, without disputing or contesting the factual situation presented by the encumbrances on the land existing at the date of taking, contends that, despite these encumbrances and restrictions of the use of the land surface and adjacent airspace, the land had the same value for 'park use' after the encumbrances were imposed as before and that a considerable area of the land lying within the clear and approach zones could be used for a public golf course. The State contended that golfers playing golf on the land within the clear and approach zones, even though they would intrude into the restricted airspace permanently and exclusively reserved by the avigation easement for the free and unobstructed passage of aircraft, would not constitute flight hazards or violate the restriction against 'any and all obstructions'. I have had many years' experience in playing golf and the uses of land for golf courses and I cannot subscribe to the State's contention in this regard. To my mind, a golfer can and would constitute as great or a greater flight hazard and obstruction in clear and approach zones as a bush, tree or brush growing on the land and extending into the airspace reserved for the unobstructed flight of aircraft. The State further contends that the value of the land as encumbered on the date of taking should be valued for 'park use' by the State and that the 'market value' principle of valuation in condemnation should be rejected, because the land was acquired and held under legislative authority for parks and parkways. I know of no legal precedent for such a novel concept or distinction, and under the circumstances here presented, I should hesitate to adopt it if such a precedent existed. Westchester County Park Commission .v United States, 2 Cir., 1944, 143 F.2d 688, certiorari denied 323 U.S. 726, 65 S. Ct. 59, 89 L. Ed. 583. Cf. State of Nebraska v. United States, 8 Cir., 1947, 164 F.2d 866, 869, certiorari denied 1948, 334 U.S. 815, 68 S. Ct. 1070, 92 L. Ed. 1745; United States v. 2.02 Acres of Land, More or Less, Situate in City of New Rochelle, D.C.S.D.N.Y.1943, 51 F.Supp. 56, affirmed Westchester County Park Comm. v. U.S., 2 Cir., 143 F.2d 688; United States v. Certain Land in Town of Highlands, D.C.S.D.N.Y.1944, 57 F.Supp. 96.

 The only departure from the 'market value' concept of just compensation in condemnation proceedings, with which I am familiar, involved taking of portions of existing public highways, streets, utility lines and facilities of that character, where the 'cost of substitute facilities' required or needed to perform the functions involved was substituted for the 'market value' doctrine. Mayor and City Council of City of Baltimore v. United States, 4 Cir., 1954, 147 F.2d 786; United States v. Des Moines County, 8 Cir., 1945, 148 F.2d 448, 160 A.L.R. 953, certiorari denied 326 U.S. 743, 66 S. Ct. 56, 90 L. Ed. 444; United States v. City of New York, 2 Cir., 1948, 168 F.2d 387; United States v. 25.4 ...

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