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July 24, 1958

UNITED STATES of America, Petitioner-Plaintiff,
765.56 ACRES OF LAND, MORE OR LESS, IN the TOWN OF SOUTHAMPTON, SUFFOLK COUNTY, NEW YORK, and Salvatore Aleci, et al., Defendant

The opinion of the court was delivered by: INCH

This condemnation action was instituted on April 30, 1957. On May 1, 1957, an order for possession was entered, to the extent of the interests sought to be acquired. On September 24, 1957, the action was dismissed insofar as it sought to acquire temporary easements for access road purposes on all of the tracts involved, with the exception of Tract B-205-E, insofar as this opinion and decision is concerned. On May 15, 1958 a Declaration of Taking was filed covering 30 tracts of the original 39 tracts involved in the action, and on the same day the complaint was amended to conform to the revised estates and interests acquired under the Declaration of Taking.

The nature and extent of the estates and interests acquired in this action consists substantially, as to all parcels, of the right to prohibit the future construction of buildings or structures and to prevent natural growth from growing on the land which would extend into or above the glide surface and/or transitional surface, as described in the complaint, as amended, and Declaration of Taking. The Government also acquired the right to remove and to raze portions of hills, embankments of earth and other materials presently extending into the airspace so restricted, as well as the right to cut to ground level, to remove and to prohibit the growth of trees, bushes, shrubs, etc., which might extend into the restricted airspace. There was reserved to the landowners, their heirs, executors, administrators, successors and assigns, all right, title, interest and privileges, as may be enjoyed in the land or existing structures without interference with or abridgment of the rights and interests taken.

 There was also taken in connection with certain of the tracts involved in this action, 'the temporary right to continue in effect until July 31, 1958, of access and passage * * * to adjoining tracts, including the right to construct temporary roads for such purposes.'

 The temporary access road easement was only exercised by the Government, insofar as this decision is concerned, as to Tract B-205-E.

 Notice of Inquest, for the purpose of hearing and determining the issue of just compensation to be paid for the rights and interests appropriated in these parcels, was filed and served upon owners or their attorneys on February 18, 1958, and such inquest was set for May 20, 1958. The inquest was thereafter adjourned to June 23, 1958, and at that time the owners of only three of these tracts appeared and offered testimony concerning the damages sustained as a result of the easements taken, or submitted claims for just compensation therefor. The tracts as to which proof was offered on the issue of compensation were: B-205-E; B-206-E; B-209-E.

 The lands involved in this action and which were subjected to the easements above described are located in the Town of Southampton, Suffolk County, New York. With the exception of Tracts B-205-E, B-206-E, and the southerly 30-odd acres of Tract B-209E, all of the lands involved in these easements constitute uncleared, unimproved, sandy scrub oak land and upon which no structures or buildings have ever been erected. However, Tracts B-205-E and B-206-E, comprising 43.70 and 3.90 acres respectively, were farmlands which were largely cleared, cultivated and improved with residences and farm buildings. It was likewise true that approximately the southerly 40 acres of Tract B-209-E (91.70 acres) were also cleared and under cultivation and constituted a portion of a larger parcel of farmlands extending southly beyond the line of the Government taking. On this part of the tract there were no buildings or improvements.

 The three parcels (B-205-E, B-206-E and B-209-E), which were used in whole or in part for agricultural purposes, consisted of a fair grade of soil which has been classified by the Department of Agriculture of the United States Government as Duke's Loamy Sand. This type of soil, when irrigated and properly fertilized, is well suited to the growing of crops, such as potatoes, cauliflower, etc.

 On Tract B-205-E there were three buildings; -- one a residence and two barns. One of the barns was cement block construction and the other frame construction. On Tract B-206-E there was only one building, -- a one and one-half story residence about five years old at the time of institution of this action. With the exception of Tracts B-205-E and B-206-E, none of the lands within the area of taking and involved in this decision had public road frontage. It was conceded that the highest and best use for which there was any present demand or market for the land embraced within Tracts B-205-E, B-206-E and the southerly part of B-209-E, was for agricultural or farm use and that the highest and best use of the remaining land was for future residential development. It appears that the present demand and market for this land, other than farmland, is largely speculative. It did not appear that any of the land within the area of the taking had been the subject of any recent improvement or development.

 The easements acquired by the Government in this action were appropriated in connection with expansion of the Air Force facilities at the Suffolk County Airfield and the relationship of this land to that Airfield undoubtedly had a significant bearing upon the market value of the land at the time of the taking of these easements by the Government, as well as the lack of residential development within the area involved. The testimony discloses that the Suffolk County Airfield was originally constructed by the County of Suffolk about the year 1939 as a local county project. As originally constructed, the dominant and principal runway at this field was the northeast-southwest runway, which had a total length of 5,064 feet. As now extended, the northeasterly end of this runway is about 3,000 feet southwest of Tracts B-205-E and B-206-E. (Gov. Exh. 14) The land here involved and concerning which the present easements have been imposed, is in the direct line of flight or flight pattern of planes taking off or approaching this runway, so it can be reasonably assumed, from the evidence, that since the year 1939, the value of this land and its utility have been somewhat adversely influenced and affected by its proximity to this Airfield and the flight of aircraft over this land.

 About the year 1941 this Airfield was leased by the Government from the County of Suffolk and during the War period -- from about the year 1941 to the year 1945 -- was used by the Air Force. It can be reasonably assumed that the number of flights of aircraft from this field during the War period was very substantial, -- both as to takeoffs and landings. In about the year 1953, while still under lease to the Government, the dominant and principal runway was expanded and extended to the northeast, a distance of approximately 2,000 feet. During the same year the Government acquired by condemnation or by direct purchase avigation easements covering substantially all of the land involved in the present proceeding. (Govt. Exhs. 5, 7 through 16) These avigation easements extended for a future period of twenty-five years. Under these easements the Government acquired an easement and right-of-way for the free and unobstructed passage of aircraft in, through and across the airspace above the glide angle plane and over the lands within the runway approach zone therein established. In addition to this easement for the free and unobstructed flight of aircraft, the Government also acquired an obstruction easement which granted to the Government the right to clear and to keep clear the said land of any and all obstructions infringing upon or extending into the glide angle plane and for this purpose, to cut and remove trees, underbrush and soil, and to demolish and remove buildings or any other structures or obstructions infringing upon or extending into or above said plane. (Govt. Exhs. 5, 7 through 13, 15)

 The lower elevation of the airspace reserved for the free and unobstructed flight of aircraft and above which no obstruction of any character could be permitted under the avigation easement of 1953, was approximately 25 feet above the elevation of the airspace which must remain unobstructed as a result of the easements taken in this action. (Govt. Exh. 1) The evidence disclosed that as to Tract B-205-E, the average height elevation of the airspace reserved in 1953 for a period of twenty-five years, for the free and unobstructed flight of aircraft in the approach zone to this northeast-southwest runway, was 47 feet above the land, and above which elevation it was further provided no obstruction of any character might intrude. The obstruction easements imposed in this action and affecting the same tract reduced this elevation to an average of approximately 22 feet. The elevation of the airspace reserved for the flight of aircraft and which must remain unobstructed under the 1953 avigation easement, as well as the elevation of the airspace which must remain unobstructed under the easements taken in this action, necessarily varies considerably, due to the irregular contour of the land, but the averages set forth herein represent the mean average between the high and low elevations of this plane or surface.

 With reference to Tract B-206-E, the average height of the 1953 avigation easement was 48 feet, whereas the obstruction easement taken in this proceeding reduced the elevation of the airspace which must remain unobstructed, to an average height of 23 feet above the land.

 In connection with Tract B-209-E, in the northerly 50 acres of the parcel of 91.70 acres herein involved, the contour of the land was very irregular, due to the presence of several comparatively high hills located in this area. As a result of this irregular contour and the presence of hills, the height of the avigation easement above the ground surface, under the 1953 easement, ranged from minus 2 feet to plus 55 feet. The airspace affected by the same easement in the southerly 41 acres, which was more level and a large portion of which was cleared and cultivated, ranged from 37 feet to 94 feet. The present obstruction easement in these same areas has been reduced by approximately 25 feet. (Govt. Exh. 1)

 The defendants' witness Sankin contended that in the northerly wooded area of Tract B-209-E there were substantial deposits of sand and gravel which could be excavated and sold profitably, although he did not appraise the land on the basis of the value of these deposits. It would appear, however, that the easements taken will not preclude or prohibit the owners from removing such sand and gravel, if found to be a profitable operation. Even if this land were to be used for a housing development, considerable grading and reduction of elevations would be required because of the hills and irregular contour of the land in this area. The average height of the airspace above the land level prohibited from future obstruction under the easement appropriated in this action, as it affects the remaining parcels now the subject of inquest is as follows: Average Height -- 1957 Tract Area Obstruction Easement B-210-E 12.40 acres 76 feet B-215-E 10.20 acres 54 feet B-219-E .06 acres ...

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