Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.
This is an appeal by certain condemnees from a judgment of the United States District Court for the Eastern District of New York fixing awards in compensation for the taking by the United States of six parcels of land situated in the Towns of Riverhead and Brookhaven, Suffolk County, New York. It is one phase, hopefully the last, of a condemnation proceeding commenced by the United States in February 1952 to acquire approximately 5,000 acres of land in eastern Long Island for the development and testing of jet aircraft. The entire proceeding has been marked by extraordinary delay, most of which is chargeable to the commission appointed by the district court in December 1953 under Rule 71A(h), F.R.Civ.P. 28 U.S.C.A., for the purpose of determining the issues of just compensation.
The first hearings of the commission, dealing with twelve parcels known as the Bobinski group, produced after fifteen months the initial and only report of the commission, a report which the district court remanded to it for lack of specific findings. The amended report, which was not filed until December 1955, contained findings which the district court set aside as clearly erroneous. The substituted findings of the district court, after two appeals to this court, were eventually upheld in their entirety. United States v. Bobinski, 2 Cir., 1958, 254 F.2d 686; 2 Cir., 1957, 244 F.2d 299.
The hearings on the nine parcels known as the Vater group, six of which are involved in this appeal, were held before the commission between November 1954 and April 1955. Thereafter nothing was heard from it. By March 1956 the district court felt that delay on the part of the commission made it necessary to vacate the authority of the commission to determine just compensation for all parcels on which hearings had not already been held. This was done, and left the commission to make a report on only the nine parcels comprising the Vater group. But no report was forthcoming. In June 1956 counsel for the United States wrote the court, reminding it of the lapse of time since the matter was submitted to the commission. Shortly thereafter the court requested the commissioners to give the matter their immediate attention. Some four months later, on October 10, 1956, the court, having heard nothing from the commission, entered an order on its own motion vacating the reference to the commission which had been made nearly three years before.
Appellants Clark and Reeves, the former owners of parcels 22 and 26 respectively, then filed a motion to vacate the district court's order discharging the commission. In support of the motion their attorney filed an affidavit noting that an appeal was pending at that time in this court with respect to the parcels involved in the first hearing, and stating that the affiant, on October 5, 1956, had requested the commission to delay its report until that appeal had been decided. The United States opposed this motion. It pointed out that the long delay was costly to the United States and unfair to the other condemnees; and that the appeal in the Bobinski case, involving different parcels of land, could not affect the awards on these parcels. As far as appears, the other condemnees took no position on the motion to vacate the order discharging the commission.
On October 29, 1956, the district court held a hearing on the motion to vacate at which all interested parties were given an opportunity to express their views. The court denied the motion to vacate the commission's discharge, adhering to its view that the commission's unexplained and inordinate delay gave the court no alternative. The court then discussed with the parties the proper procedure for terminating the case, suggesting that the court decide the issue of just compensation on the basis of the record made before the commission:
"* * * I want to get this thing so we can decide it. I am not going to drift along. I have tried my best to stop this drift, but I couldn't stop it. They [the commissioners] indicated that they weren't going to file any report at all at one time.
"Now we have got down to these nine parcels, and if the evidence that you introduced before the Commission is available and the briefs are available and I have ended the Commission, well, why not take it over, why shouldn't I do that and make my decision?"
Although counsel for appellants Clark and Reeves objected to the denial of the motion to vacate, stating that a report by the commission was essential to a fair hearing, he did not request a trial de novo before the court. On the contrary, he stated that a trial de novo would be an unnecessary hardship on all the parties. In short, his position was simply that the district court was powerless to do anything other than resubmit the case to the commission - a commission which, nearly three years after its appointment and eighteen months after the hearings, had failed to file its report, or even to explain its delay to the court. Counsel stated:
"Your Honor, the Commissioners saw the property, they made a report on the prior takings, they have seen the witnesses, they heard the witnesses testify. * * *
"I submit, sir, if there had been no proof taken as to these parcels, there would be no possible objection to your right to recall your order and take the matter before the Court. That was done with respect to other parcels. But I say, sir, that once the matter has gone as far as this has that we are entitled as a matter of law to have the Commissioners submit their report and proceed from there."
The court rejected this position and attempted to find another alternative which would be satisfactory to the parties. What it finally did was to deny in open court appellants' motion to vacate, and it scheduled another hearing at a later date at which the parties could submit anything further, legal argument or proof, as they deemed advisable.
"I am denying the motion to vacate, and I will give you further time, two weeks to add to something which you already have in and which you now wish to put in there, and then this whole matter will be put before me for decision. * * *
"Mr. Finn [attorney for appellants Clark and Reeves]: Well, as I understand it, we will have a hearing before you at which time we can submit such ...