The opinion of the court was delivered by: BYERS
This condemnation proceeding involves two tracts of land, in the Village of Brookville, Nassau County, Long Island, known and referred to herein as the Chase and Froehlich properties. They are separately owned, and are comprehended in the one proceeding because a portion of each was required by the Government for the erection and maintenance of a guided missile installation known as a Nike site.
What is known as the control element was erected on part of the Chase property, and the launching element on part of the Froehlich property.
It should be said at the outset, that the Court understands that the operations there conducted do not involve the actual launching of such missiles, but the training of personnel in all technical and practical incidents of actual warfare involved in this branch of the Service; also the maintenance at the launching element, of all ammunition and materiel that would be necessarily employed in the event of hostilities.
It is understood that the actual launching and testing of such guided missiles is conducted only upon Government property in the Southwestern part of the United States.
So much is deduced from the testimony of the Commanding Officer (Captain Chaulk) given at the trial, and if the defendants are advised that the Court has misinterpreted what he deposed in this respect, they should have the opportunity to reopen the case for appropriate exploration of the subject so far as that is consistent with national security.
The matter is of importance concerning severance damage, as will be seen.
The Chase property as a whole was of about 140 acres of vacant land on May 25, 1954, the date of the order for possession. Of this total, some 23.40 acres make up these damage parcels, namely:
A 100 Fee 6.98
A 100 E-1 Easements .95
A 100 E-2 Easements 1.31
A 100 E-3 Easements 7.78
A 100 E-4 Easements 6.38
The Froehlich property consisted of about 276 acres, of which the damage parcels are:
A 101 Fee 42.95
A 101 E-1 Easements .83
A 101 E-5 Easements 1.16
A 101 E-6 Easements .89
These properties are part of an extremely attractive area of the North Shore of Long Island. The country is somewhat wooded, and rolling; many substantial dwellings have been erected on extended acreage, with the result that the essential characteristics of the terrain have been retained. In recent times however the Village of Brookville has zoned the area here involved to two acre plots for residential purposes, and such is the present aspect of development. This means that improvements consist of dwellings costing from $ 50,000 upward in the vicinity of the affected properties.
With an understanding of the kind of property here involved, thus imperfectly summarized, it is now required to deal with the ever-difficult question of the so-called fair market value of that which has been taken by the Government.
At the time of taking, no plans for the development of either the Chase or Froehlich properties for sale in two acre parcels had been undertaken or perfected; however, as to the former, the subject was present in the minds of the owners to such an extent that borings were made and consultations with competent advisers had been initiated just prior to the date of the order for possession. It is clear also, and uncontested, that the best available and most profitable use of these parcels was for such development, and the absence of formal planning to that end is of no present consequence.
The highest point on the Chase property is that taken in fee (A 100) which has an elevation of about 300 feet. The configuration of the land gives rise to a special consideration urged as an element of value, which does not apply to the Froehlich property, and thus it becomes necessary as well as convenient, to consider them separately.
The best showing of these damage parcels is on Chase Exs. B and N -- a map without which it is scarcely possible to visualize the peculiar interrelationships of the damage parcels, with the remaining part of the Chase property not taken in the proceeding.
It will be seen that the damage parcels are all interior, and have no road frontage, with these exceptions: A 100 E-2 extends about 130 (E. & O.E.) feet on Cedar Swamp Road. It is triangular in shape and its sides extending westerly, converge so as to meet at the southeast corner of A 100.
A 100 E-1. This irregular shaped parcel has a broken line frontage of from 100 to 150 feet on a private road, known as the Gavin Road.
Damage parcel A 100 (the fee taking) is the site of the control element of the installation, and is the highest part of the Chase property. It is called a hill and as stated, the elevation is about 300 feet. Its northeasterly side rises abruptly from Cedar Swamp Road, so much so that if the Government had not taken the property, and a scheme of development into two acre residential plots had been put into effect, a certain amount of levelling of this comparative eminence, and other adjacent of lesser height, would have been required, in order to render the entire 140 acres suitable for coherent development. It is not feasible however to state an approximate total of the cubic yards thus to be removed, for much would depend upon the vision of the developing agent concerning the preservation of convenient and attractive ...