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June 2, 1959

UNITED STATES of America, Petitioner-Plaintiff,
765.56 ACRES OF LAND, MORE OR LESS, IN THE TOWN OF SOUTHAMPTON, County of Suffolk, State of New York, and Salvatore Aleci, et al., Defendants. Tracts 211, 212, 216, 218, and 223

The opinion of the court was delivered by: INCH

Findings of Fact and Conclusions of Law

History of Proceedings

 This condemnation action was instituted on April 30, 1957, to acquire the specific easements hereinafter described. On May 1, 1957 an order of possession of said easements was entered and which date, it is not disputed, constitutes the date of taking and valuation of the easements appropriated. United States v. Dow, 1958, 357 U.S. 17, 78 S. Ct. 1039, 2 L. Ed. 2d 1109. As originally instituted, the easements taken involved some 39 separate parcels, comprising an aggregate area of approximately 765.56 acres.

 On July 24, 1958, after trial, the court filed its decision fixing the compensation to be paid for the easements taken as to ten parcels. United States v. 765.56 acres, D.C.E.D.N.Y.1958, 164 F.Supp. 942. On January 5, 1959, this court after trial filed its findings of fact and conclusions of law fixing the just compensation for the easements taken as to four additional parcels. Appropriate judgments fixing compensation in accordance with said decision and said findings of fact and conclusions of law were duly entered on August 13, 1958 and January 20, 1959 respectively.

 The just compensation for the easements taken as to the remaining parcels, with the exception of those now under consideration, has been fixed and determined by stipulation of the parties and orders of court entered thereon. There remains, therefore, for consideration and determination by the court, the fair value and just compensation which should be paid by the United States for the easements taken insofar as they affect the five above-identified parcels as of May 1, 1957, the date of taking.

 Question Presented

 The question presented throughout this action and now presented as to the remaining undisposed of parcels is essentially the loss or diminution in the fair market value of the land which has resulted or flows from the nature, character and extent of the estates or interests appropriated by the Government. Differently stated, the just compensation should approximate the difference in the fair market value of the land immediately before and after the easements were imposed by the taking. United States v. 765.56 acres, supra; United States v. 329.05 acres, D.C.S.D.N.Y.1957, 156 F.Supp. 67; United States v. 48.10 acres, D.C.S.D.N.Y.1956, 114 F.Supp. 258; United States v. 72.35 acres, D.C.E.D.N.Y.1957, 150 F.Supp. 271; United States v. 26.07 acres, D.C.E.D.N.Y.1954, 126 F.Supp. 374; 293.080 acres of Land More or Less, Situate in Westmoreland County, Com. of Pa. v. United States, D.C.W.D.Penn.1959, 169 F.Supp. 305.

 Nature of Easements Appropriated

 (Tracts 211, 212, 216, 218, and 223)

 Perpetual and assignable easements and temporary easements for the establishment and maintenance of clearance areas or zones in and over the above identified tracts, consisting of the following rights:

 (1) The continuing perpetual right to remove, to raze, to destroy and to prohibit the future construction of buildings or portions thereof, other structures or portions thereof, land, hills, embankments of earth and other materials, infringing upon, extending into or extending above the approach glide surface and/or transitional surface as described in the complaint in condemnation.

 (2) The continuing right to top, to cut to ground level, to remove, and to prohibit the growth of trees, bushes, shrubs, or any other perennial growth or undergrowth infringing upon, extending into, extending above, or which could in the future infringe upon, extend into, or extend above the approach glide surface and/or transitional surface as described in the complaint in condemnation.

 (3) The right of ingress to, egress from, and passage on the above tracts of land for the purpose of exercising the rights hereinabove set forth.

 (4) The temporary right, to continue in effect until July 31, 1958, of access and passage on the above tracts of land for purposes of access to adjoining tracts, including the right to construct temporary roads for such purposes.

 (5) Reserving, however, to the landowners, their heirs, executors, administrators, successors and assigns, all right, title, interest and privileges, as may be enjoyed without interference with or abridgment of the rights hereby granted.

 (6) Subject to existing easements for public roads, highways and streets, for public utilities and railroads.

 Generally speaking, the purpose of such easements is to clear and keep clear from any and all obstructions of whatsoever character, the airspace within the approach zone to runways or airstrips adjacent to airfields and to eliminate the flight hazards which might be created by obstructions of any character extending into the restricted airspace constituting the glide angle plane for such runways. In this instance, the obstruction easements taken had relation to the approach zone to the northeast-southwest runway of the Suffolk County Air Force Base, which is located adjacent to and adjoining the easement area on the southwest. The glide angle plane is a trapezoidal plane extending over the runway approach zone, starting from a line 1500 feet long at its base and commencing at a point 1000 feet northeast of the end of the runway. The base of the trapezoidal plane is 1500 feet wide or 750 feet on either side of the center line of the runway, if projected through the center of the 1000-foot clear zone which is a zone extending 1000 feet from the end of the actual runway and in this instance, in a northeasterly direction. The side lines of the planes are each about 10,000 feet long and extend outward from the base at designated angles, so that the plane grows broader as it proceeds outward from the base. The width of the side lines of the plane are approximately 4000 feet when they reach a distance of approximately 10,000 feet from the base. The base of the plane slopes upward at a rate of one foot vertically for each 50 feet horizontally for a distance of 10,000 feet and reaches an elevation of 200 feet above the ground when it reaches its outward terminal point, starting at ground level at its base. (Govt.Exhs. 15, 16, 17)

 Type and Character of Land Under Consideration

 The parcels under consideration here are all located in the Town of Southampton, Suffolk County, as is all of the land involved in this condemnation action and about six miles southeast of Riverhead, the county seat. The court has personally inspected and viewed the land involved in this action on two occasions, including the parcels under consideration, and also viewed this same property when it was the subject of a somewhat similar and comparable condemnation action in 1953. (United States v. 33.99 acres, -- C.P. 91 -- not reported) -- (Govt. Exh. 16) With the exception of Tracts 204, 205 and 206, previously disposed of and which involved tillable farmlands, all of the land, including the tracts now before the court, are the typical sandy, unimproved, scrub oak land found so abundantly in this area. The United States Department of Agriculture Soil Survey of Suffolk and Nassau Counties, New York, compiled in 1928 in cooperation with the Cornell University Agricultural Experiment Station and the accompanying maps of the area, classify all of the land under consideration as 'Plymouth Sand'. The parcels under consideration are located in about the center of an area of this type of soil classification, extending about 2 1/2 miles from east to west and about 1 1/2 miles from north to south. (Govt.Exh. 29) This soil type is described in the official Soil Survey above referred to as 'identical in all respects with Plymouth loamy sand except in the presence of a surface soil consisting of sand, with too low a percentage of fine material to give a loamy feel. Plymouth sand occurs in rather extensive areas, the greater part of the south ridge and a large part of the south fluke being occupied by it. Practically none of the land is under cultivation.' (Govt.Exh. 29, pp. 26, 27; and attached map of the area with location of the subject parcels identified thereon).

 None of the land under consideration had been cleared of natural scrub growth or used for any purpose other than a small area near the southerly boundary of Tracts 211 and 212, where prior to the taking of the easements, a relatively small area had been cleared and some earth removed. The contour of the land was highly irregular. The elevation of the land rose from 100 feet at the southerly boundary to a maximum elevation of approximately 230 feet in the center portion and then gradually descended to an elevation of 100 feet near the northerly boundary. (Govt.Exhs. 2, 21, 29)

 Within the parcels under consideration there were seven hills which reached peak elevations of approximately 230 feet above mean sea level. (Govt.Exhs. 1, 2, 21, 29) The presence of these hills and their elevation with relationship to the glide angle plane established by the easements taken necessitated the excavation and removal of that part of the hilltops which intruded into the airspace restricted and prohibited by the easements from any obstructions which might constitute a hazard to the flight of aircraft taking off from or approaching the airstrip or main runway of the Suffolk County Air Force Base as extended and lengthened by the Government in 1957 and 1958. The right to remove these hills or earth obstructions was among the rights included in the easements taken.

 The Suffolk County Air Force Base, which is located to the southwest of the easement area and contiguous thereto, is owned in part by the United States and in part by Suffolk County. The part owned by the County has been leased and used by the United States Air Force since about the year 1942. (Govt.Exh. 22) As originally constituted, the principal runway extending northeast-southwest, was approximately 5,000 feet long. In 1953 the Government extended the runway to the northeast some 2000 feet and in connection with such extension, acquired by direct purchase and/or by condemnation, avigation easements over most of the area involved in the present action and including the parcels under consideration. (Govt.Exhs. 15, 16, 17, 22) The easements so acquired in 1953 and which encumbered this land at the time of taking of the present easements on May 1, 1957 were substantially identical with the easements now under consideration with the following exception: The 1953 easement granted to the Government not only the right to clear and keep clear the land from any obstructions, including the removal of soil, trees, etc., which intruded or extended into the airspace above the glide angle plane established by the easement, but also restricted and reserved such airspace above the glide angle plane 'for the free and unobstructed flight of aircraft in, through and across the airspace above the glide angle plane'. (Govt.Exhs. 15, 16, 17) This latter right was not taken or acquired in the present action nor included in the easements here appropriated. The present taking, comprising obstruction or clearance easements, was necessitated by and resulted from the extension of the principal runway at the Air Force Base by an additional 2,000 feet in 1957 and 1958. This extension of the runway, due to Air Force criteria, requires that all of the land in the approach zone or glide angle plane area be cleared and kept clear of any and all obstructions, whether hills, embankments of earth, trees, structures or obstructions of any character. The sole distinction between the 1953 easement affecting this land and the 1957 easement here acquired, insofar as concerns this clearance or obstruction feature, was to lower or reduce the elevation of the 1953 glide angle plane by 25 feet. As a result of topographical surveys it was determined that the only obstruction which invaded the glide angle plane easement of 1953 was a portion of Hill No. 2 located partly on Tract 211 and involving an area of approximately 2.3 acres. In this area the hilltop could be removed under the 1953 easement to a depth of approximately 6 feet. Due to the limited area involved, it appears that the Government did not exercise its right to excavate and remove that portion of Hill No. 2 on Tract 211 prior to the time the present easement was taken. (Govt.Exh. 1)

 After the present easements were taken, topographical studies indicated that seven hills within the easement area required limited and partial removal because they extended into and above the glide angle plane. (Govt.Exhs. 21, 22) The Government at its expense removed approximately 2 million cubic yards of the earth comprising the highest elevation of these seven hills. A portion of Hill No. 1 was located within Tract 211, the remaining portion being embraced within Tracts 207, 208, 209 and 236, which have been the subject of previous trials or stipulations and orders fixing compensation.

 Hill No. 2 was principally located in about the center of Tract 211, a portion thereof extending westward into Parcel 209. (Govt. Exhs. 1, 21, 22) Hill No. 3 was entirely located in or about the center of the northerly part of Tracts 211 and 212. Hills Nos. 4, 5, 6 and 7 were partly located in Tracts 216 and 218 and other parcels not here involved and previously disposed of. (Govt.Exhs. 1, 21, 22)

 Earth Removed Under Easement

 It was conceded that the Government, in the exercise of its easement rights acquired herein, excavated and removed from that portion of Hills Nos. 1 and 2, lying within Tract 211 and from Hill No. 3, lying entirely within Tracts 211 and 212, approximately 453,451 cubic yards of earth and involving a total excavated area of 25.5 acres of the total area of 146.7 acres comprising said Tracts. The Government conceded that from those portions of Hills 4, 5, 6 and 7 lying in whole or in part in Tracts 216 and 218, it excavated and removed approximately 47,935 cubic yards of earth from an area of approximately 5.16 acres. The total area of Tracts 216 and 218 involved in the easement was 66.90 acres. No earth was removed from Tract 223. Tracts 216, 218 and 223, comprising a total area of 94.30 acres within the easement area, were a part of an ownership of 286 acres, the remainder adjoining on the south and lying outside of and beyond the boundary of the easement.

 It was conceded by the Government that the earth removed from Tracts 211, 212, 216 and 218, aggregating approximately 500,000 cubic yards, together with approximately 1,700,000 cubic yards of earth removed from other parcels within the easement area, was removed to other lands owned by the Government where the runway extension was being constructed and used as 'general fill' in such construction. It was established by the Government's proof and not controverted that to remove this earth from the interior of these parcels, the Government, at its expense, acquired rights-of-way across adjoining lands, built and maintained roads to afford access for its machinery and equipment to public highways for a distance of some 3000 to 4000 feet; that it paid the cost of clearing the land of trees and natural growth and of disposing of this debris; of stock-piling and preserving such loam or top soil as existed; of excavating and removing the earth necessary to clear the glide angle plane; of restoring the stockpiled top soil, grading the area of the excavation to a uniform grade, fertilizing and seeding the area where the excavation occurred and generally restoring the land to better contours than obtained before the taking. (Govt.Exhs. 3, 4, 24)

 The testimony establishes that the land upon which the runway extension was constructed in 1957 and 1958 was below the grade of the end of the runway as extended in 1953 (Govt.Exhs. 21, 22) and required over 2 million cubic yards of general fill, in addition to the select base material which was laid on top of the general fill and just below the concrete forming the runway surface. It is obvious that the Government's use of the earth removed from the area of the easements here involved was incidental to and not the object of the taking of the easement to remove the obstructions which produced the fill used. Had the Government required no fill for the construction of the runway extension, nevertheless the necessity to remove these obstructions was present and the Government would be required to find other areas for disposing of the earth excavated from the hills which intruded into the glide angle plane patterned for the extended runway approach zone. It is equally obvious that if these hills did not exist or did not require any excavation or lowering of their elevations, the Government could acquire by purchase vast unused areas in this locality to supply its fill requirements at the prevailing market price for scrub oak land of this character. The cost of such fill could not exceed the fee value of the land from which such fill was readily available.

 General Discussion of Facts Established Tracts 211 and 212 comprise a total area of 146.7 acres. (Govt.Exh. 1) In the exercise of its easement rights taken in this action the Government razed and removed 453.451 cubic yards of earth from that portion of the hills located on these parcels and lying in the central and northerly portions. The area involved in the excavation was ...

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