We turn to the further questions, above alluded to, as to whether (2) the 'declaration of taking' which here circumscribes and delineates the character of the taking, and which calls it 'an easement and rights * * *' is in fact the taking of a fee, so that it is essentially misleading and a possible violation of the statute, and whether (3) the statute is further violated by the Government's alleged deposit, not of 'estimated' just compensation, but of a purely nominal, and accordingly arbitrary, sum.
The declaration of taking specifically sets forth the 'easement and rights' to be taken as 'consisting of the following:
(1) The continuing and perpetual right to cut to ground level and remove trees (etc.) * * * infringing upon or extending into or above the line-of-sight clearance surface * * * and
(2) The right to remove, raze or destroy those portions of * * * structures and land infringing upon or extending into or above the line-of-sight clearance surface * * * and
(3) The right to prohibit the future construction of * * * structures infringing upon or extending into or above the line-of-sight clearance * * *
Reserving, however, to the land owners * * * all right, title, interest and privilege as may be exercised and enjoyed without interference with or abridgement of the easement and rights hereby taken for said public uses * * *.'
In short, for the purpose of transmitting electronic impulses for military use, the United States Government took the right to use, and keep clear of physical obstructions from the ground below, an air space starting at its lowest level 50 feet above defendants' land. But the right to use the lands themselves was left to the defendants, subject to such restriction. In short, defendants could build houses thereon provided they were no higher than 50 feet, and provided electronic impulses from such houses did not interfere with those emanating from the governmental installations. Furthermore, the land remained perfectly free for either farming or grazing purposes. Obviously, substantial beneficial uses of the land remain in defendants. Obviously, the United States Government is not taking the fee of defendants' land, but some easement or servitude affecting such lands. U.S. v. Causby, 1946, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206; U.S. v. Cress, 1917, 243 U.S. 316, 37 S. Ct. 380, 61 L. Ed. 746; U.S. v. 2648.31 Acres of Land, Etc., 4 Cir., 1955, 218 F.2d 518. Of course, 'the use of the air space immediately above the land would limit the utility of the land and cause a diminution in its value.' U.S. v. Causby, supra, 328 U.S. at page 262, 66 S. Ct. at page 1066. Since it is the owner's loss, not the taker's gain, which is the measure of the value of the property taken, U.S. v. Miller, 1942, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336, it is quite immaterial, so far as the owner is concerned, by what technical name, such as easement, servitude, profit a prendre, or otherwise, the rights taken are technically known. But in any event, the United States has not contravened the statute in describing the rights taken, as set forth in the declaration of taking.
As to the objection that the cash deposit with the court by the United States was not, as the above Congressional act requires, the amount of compensation which had been in fact 'estimated', but a mere nominal amount fixed at a purely arbitrary sum, so that the proceedings here violated the Congressional authority on that account, it is, of course, true that, if such were the fact, the objection might be well taken. For then the purpose of the statute, in assuring the land owner that he would not be deprived of the possession of his land, until he had obtained its estimated equivalent, would have been 'thwarted by arbitrary governmental action'. U.S. v. 44 Acres of Land, D.C.W.D.N.Y.1953, 110 F.Supp. 168, 171. But it must be borne in mind that the estimate is not final. Final award is to be ascertained and awarded on the condemnation hearing. Garrow v. U.S., 5 Cir., 1942, 131 F.2d 724, certiorari denied, 1943, 318 U.S. 765, 63 S. Ct. 664, 87 L. Ed. 1137. Again this Court can not weigh in this regard the evidence as to what amount the estimated just compensation should be, but only the question as to whether or not the amount deposited had, in fact, been 'estimated', and not deposited as a mere nominal or arbitrary sum. However, upon the Court's suggestion that a hearing could be had as to this deposit, and the Government's assurance that it would within a week file an affidavit by a qualified realtor that the cash deposit had, in fact, been in the amount of properly 'estimated' just compensation, defendants indicated that they would be satisfied therewith.
Since a land owner will receive just compensation for his land taken, after hearing, on notice -- the prime requisites of due process -- it is clear that defendants' final claim is incorrect that their rights under the Fourth and Fifth Amendments of the United States Constitution have been violated.
An order may be entered accordingly.