The opinion of the court was delivered by: BYERS
This condemnation proceeding was initiated on August 17, 1959 by a declaration of taking, and involves 6.65 acres as to which fee title is involved and .49 acres in two five foot strips on either side of a road, as to which easements were acquired.
The property lies at the eastern end of Long Island and is about 125 miles from New York City. It is not less than two miles West of Montauk light; comprises part of some 1,100 acres lying East of Lake Montauk; it is bounded on the North by Block Island Sound, and on the South by the Atlantic Ocean, these waters being separated by about two and one-half miles of land, in which these properties lie.
It is possible that the said 1,100 acres do not embrace lands bordering on the ocean, although all the property above referred to is owned by Montauk Beach Company, Inc., the defendant; it is agreed that the subject matter of the proceeding is part of acreage extending Easterly from Lake Montauk embracing about 1,100 acres.
The character of the terrain is fairly level, with many knolls to relieve a flat appearance; there are practically no trees, and the general aspect is that of Scottish Moors, carpeted by low bushes and grass into which in recent years cattle were turned for forage.
The natural advantages are the wealth of marine views, and a certain remoteness from many modern innovations that are less than priceless when imposed upon a tranquil and attractive manifestation of Nature's unaided handiwork.
It will be seen that this cause, like most others in the same category, presents its own peculiar problems.
The Purpose of the Taking
The U.S. Army Corps of Engineers initiated the proceeding in order to install what is known as a G.A.T.R. (Ground, Air., Transmission, Receiving) station for the U.S. Air Force. This means a series or set of radio installations for communication with defensive air borne weapons, manned or unmanned.
There is a one-story building 113 feet long, 26 feet wide of concrete block, which varies in height from 14 1/2 to 15 1/2 feet. Adjacent to this is a concrete and masonry building 50 x 29 which houses the power plant.
These buildings are enclosed in a security fence, which also surrounds the installation as described in U.S. Exhibit 3:
'It is contemplated that eleven power antennae will be constructed, each mounted on an individual wooden telephone pole. These poles, variable in height, will be probably in excess of 60 feet and more likely 80 feet above ground level. In addition thereto, plans provide for four high power antennae, two of which will be mounted between two 90 foot poles. The remaining two high power antennae will be of steel construction 60 feet in height and 50 feet in radius, each side giving the appearance of the letter 'D' from an aerial view. The straight side of the 'D' will face toward the building.'
The following exhibits must be examined in order to gain an understanding of the project itself, the property involved and the surrounding terrain: U.S. Exhibits 1, 5, 12, 13, 14 and 15. The many photographic views included in the exhibits for both sides accurately portray the terrain and the various structures involved.
That this installation is of the first importance to our nation is obvious, and is not the subject of discussion in any of the briefs. The subject is mentioned as a reminder that all close questions must be approached with some understanding that more searching inquiries are involved than those which would arise in purely civil litigation involving the respective rights of grantors and grantees in which nice distinctions might be appropriate in the effort to clear or establish real estate titles or interests, e. g., Gardner v. Forest Lake, etc., Sup., 131 N.Y.S.2d 363.
The occasion for that observation will become apparent in the discussion of the effect to be given to the Ringwood Map presently to be referred to.
The buildings erected by the Government are not in themselves the subject of criticism. They are of such a general aspect as might have been erected for occupancy as a residence and garage, had a private purchaser acquired the property by purchase from the defendant in ordinary course of dealing. The fact that no such purchase was made is consistent with the few acquisitions of residential property in this locality, during the period of ten years starting in 1951. In other words, these 1,100 acres have not been in demand for residential purposes during that period of time. The only two buildings of that type within the area lying East of East Lake Drive (which runs along the Easterly side of Lake Montauk) and extending for a distance of 4,000 feet, are the Star and Weismantel residences which are South of the property taken and not nearer thereto than 300 feet.
The other sales relied upon by the experts on both sides, were of unimproved acreage and will be alluded to on the subject of damages.
The 6.65 acres taken when viewed in plan, resemble a reversed letter 'L' with is lower arm extending to the left (West) and the longer arm running nearly North and South; the greater length is thus of about 800 feet and the lesser nearly 600 feet. The width of the longer section is nearly 300 feet down to the lower arm and the base line of the figure is less than 500 feet. The Southerly line is connected with the Easterly one by a diagonal line of approximately 125 feet extending in a Northeasterly direction.
The area so embraced involves the level top of a knoll which is about 155 feet above sea-level; its height above the mean level of surrounding lands is not shown.
Since most matters are relative, this rise can be called a hill top, i. e., the top of a low hill in an area that contains no obviously higher knoll, but several of nearly the same altitude.
The award of damages will be seen to involve (a) the fair and reasonable market value of the 6.65 acres; (b) the indirect damage, if any, occasioned by the taking, being the amount by which surrounding property not taken may be deemed to have thereby suffered a loss in value, and (c) the value of the property subjected to the esements impressed or imposed upon the two five foot strips abutting upon the access roadway which leads from East Lake Drive to the G.A.T.R. site. The latter issue is of minor consequence in any practical sense.
The first question which involves the principal issue in the case, turns upon the legal effect to be given to the Ringwood Survey or plan which was prepared in about 1926. That was a projected scheme for the development and sale of the 1,100 acres above referred to, in convenient parcels allocated to so-called blocks. That plan was incidental to the establishment of fixed monuments for triangulation points, to form the basis of metes and bounds descriptions to be included in deeds of parcels of lands which might be conveyed to purchasers by the predecessor in title of this defendant. Certain conveyances were so made, with rights of way over roads which were suggested on that plan.
The survey was never filed as a map in any public office, and hence there was no dedication of roads whereby the rights of the public to their use was ever established. Since that is true of the roadways shown on the survey, it follows that the blocks and lot lines also shown were tentative only, and could be altered, modified or abolished by the owner of the acreage, so long as the legal rights of access on the part of the few grantees named in deed from the owner, were recognized and protected.
Since some thirty-three years elapsed between the preparation of the Ringwood Survey and the taking of these properties, it must be evident that the election not to file the survey as an official map was deliberate and calculated. The defendant has shown conclusively that the filing of such a map and the dedication of roads so indicated, would have involved an expense in maintenance and perhaps of construction, that evidently was not deemed to be justified, in view of the nature ...