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May 22, 1958

UNITED STATES of America, Plaintiff,
29.28 ACRES OF LAND, SITUATE IN the TOWNSHIP OF WAYNE PASSAIC COUNTY, NEW JERSEY, and the Circle Lumber Company et al., Defendants

The opinion of the court was delivered by: HARTSHORNE

In this condemnation proceeding the Government has taken, for a Nike missile site, a number of tracts owned by a of parties. Some of these tracts have been taken in fee, some for easements of way, *fn1" some for a safety area easement, *fn2" some for a line of sight easement, *fn3" some for a pipe line, *fn4" and some for a combination of the above. Not only so, but the Government has had three takings at different times, the first, October 14, 1954, the second August 22, 1955, the last March 14, 1957, which affected only the small Saniewski properties. The fact that these takings were at different times is of real importance, because all these properties are in a locale, the nature of which was rapidly changing, both before and during the time between the first two takings. Again, because of this changing situation, the municipality in which the tracts lie -- Wayne Township -- had been induced, both by this very change and by the activity of property owners, to make changes in its zonings, which to some extent may have affected these properties during the very periods with which we are concerned. Each of these different factors substantially affects the amount of the loss to the various property owners from these two governmental takings. Doubtless because of the above complications, a jury was waived, the trial being to the Court and lasting some two weeks. The Court, with counsel, personally inspected the properties involved before the hearing, since one's eyes can often see, and interpret, what it would take volumes to attempt to put into words.

Generally speaking, until a few years before the taking, the neighborhood had been completely rural and agricultural. Then the State put through Route 23, a broad dual concrete highway, one of the main routes in the entire State. Of course, it took some time for the full effect of this improvement to be appreciated locally. One of the first to appreciate it was the Circle Building Supply Co. Inc., which owns the land mainly involved in this case, largely because of its interest in the building business. This company bought considerable acreage, by two purchases at different times -- Tract 1, October 24, 1950; Tract 2, April 15, 1953. The entire tract purchased was then farm land on the east side of the above north and south highway. It ran from the bottom of a hill, halfway up its side, including a considerable amount of low land at its easterly end. This land is substantially surrounded on all but the road side with the property of one Tether, a farmer, certain of whose property is also involved here, the smaller parcels of the other interested owners -- Kaminski, Saniewski and Acker -- lying close by.

 Circle built a lumber and building material supply store on the road, after making considerable fill, and blacktopping this fill, in front of the store, with a road entrance going along its southerly side and a road exit along its northerly side. In the rear of the store for some distance Circle created a lumber yard, with some sheds. The remainder of the Circle properties here involved was vacant land, some on the hillside, some on the low flat, most of it previously having been farmed. Such was the situation as it substantially existed at the time of the first taking.

 After the two Circle purchases, but previous to the first taking, the public began to appreciate the difference in values created by the new highway. All agree that there was a big improvement in changing this locale from a rural to a semi-suburban area, with selected industries, from shortly before this first taking on through the second taking and, in fact, thereafter. That this change was substantial may be gathered from the facts that in the last 14 years the property values in this township have trebled in value, while the population has doubled in the last seven years alone. Perhaps it should be added that a summer community had existed, even previous to putting through Route 23, around Packanack Lake, a mile or so to the east of the takings. This community naturally grew concomitantly changing in fact, after the new highway was constructed, to an all year round community, with all necessary facilities.

 There is no doubt that much of the difference of opinion between the landowners and the Government, as to the damage ensuing to the owners from these two takings, is due not only to some of the unusual factors above alluded to, but particularly to the different viewpoint as to the varying extent of this rapid change over the entire neighborhood preceding, and intervening, these takings, with its probable sequelae, such as a great increase in the use of the land as a suburban residential community, with all the necessary facilities, such as streets, water, sewers, etc.

 In view of the many owners and the many tracts involved, and of the fact that there were two takings, it will help clarify this determination of the many issues, if the tracts are taken up separately, according to the individual owners; and as to each owner, according to the separate tracts, as in turn affected by the separate takings. Indeed, to place these facts in tabular form will much shorten the discussion, though certain applicable principles of law will require discussion. Upon the basis of this discussion of the principles of law and the tabular presentation of the facts involved, this Court will then assess the damages of the landowners, upon whom, of course, lies the burden of proof.

 The constitutional right of the landowner to a just compensation for his lands taken, U.S Const. Amendment V, in eminent domain cases, ordinarily means fair market value, United States v. Miller, 1943, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336. This means the market value of the land as between a willing buyer and a willing seller. Since a willing buyer and a willing seller are each seeking to profit from future developments and these developments are not certainties, but mere probabilities, if not possibilities, clearly, while such estimate of market value must be based in general upon facts having a rational foundation, the determination of such probabilities involves some speculative factors. Westchester County Park Commission v. U.S. 2 Cir., 1944, 143 F.2d 688, certiorari denied 323 U.S. 726, 65 S. Ct. 59, 89 L. Ed. 583. Indeed, in the absence of adequate proof of sales of truly comparable properties, this determination of fair market value often becomes somewhat of an 'educated guess.' Westchester County Park Commission v. U.S., supra, 143 F.2d at page 692; United States v. 50.08 Acres of Land, D.C.E.D.N.Y.1957, 149 F.Supp. 749, 751. Of course this fair market value must be determined as of the date, or dates, of the taking of possession by the Government.

 'Just compensation in a proceeding of this kind represents the difference between the fair market value of the entire unit of property of an owner at the time of the taking and the fair market value of the part remaining after the taking.' United States v. Waymire, 10 Cir., 1953, 202 F.2d 550, 554.

 This just compensation consists of two major elements, first, the loss to the owner of the land, or rights, actually taken, and second, the loss to the owner from the effect of such taking on the property remaining in his hands after the taking, normally called 'severance damage.' United States v. Miller, supra, 317 U.S. at page 376, 63 S. Ct. at page 281.

 In the light of these principles, we turn to the further facts bearing upon the loss to the landowners respectively.

 Circle Building Supply Co. Inc.

 At the time the first taking, Circle was operating a lumber and building supply store and yard on the east side of Route 23, from about the foot of the hill halfway up its side, together with its ownership of a considerable tract of land to its east and north. It took title to Tract 1, consisting of slightly over three acres, for this lumber and building material supply purpose, on January 4, 1951. This tract had a frontage of slightly less than 200 feet on the highway and extended, irregularly, to the rear some 700 feet. On April 15, 1953, it contracted to purchase Tract 2, adjoining Tract 1 on the north. Tract 2 consisted of some 33 1/2 acres, with a highway frontage of 462 feet and a rearage of almost 2,000 feet. This tract was acquired for future development for residential purposes. Circle, being in the lumber business, was doubtless more aware of this probable future development than were the farmers and other landowners thereabouts. After purchasing the first tract, Circle obtained a variance to permit the use of the westerly portion of Tract 1 to a depth of 200 feet for its business. Thereupon it put considerable fill on the very front portion of this first tract and blacktopped it, constructing a substantial store, with certain outbuildings, including lumber sheds. Tract 2, generally purchased for residential development, on the easterly side of the highway, was in part at the level of the road, in part above the highway, and in part below it. A considerable portion of its rearage sloped down to the east, further than the grade of the frontage of Tract 1, so that this rearage had been ditched to carry off flood waters even while used for agricultural purposes, though this flooding was not deep and only of occasional occurrence.

 Since much of the front portion of Tract 2 was above the level of the road and relatively free of stone, Circle had arranged with third parties for removal of much of this earth for fill at a fixed price per cubic yard, and had also arranged for the removal of topsoil at another price. In addition, consideration must be given to the need of fill in the low rearage of this same tract, and that for that reason, if no other, the removal of this fill and topsoil might not continue indefinitely under the contract. Such being the case, while it is clear that the existence of this fill and topsoil under its general contract was an element to be considered, with all the other elements, in ascertaining the fair value of this tract, Circle's possible profit from this contract of removal cannot be ascertained as a separate value factor, to be added as a fixed amount, to the valuation of the tract itself. Thus the situation here differs substantially from that of lands whose prime value is their gold, their silver, their lumber, for which there is a ready market, with a fixed contract in effect for its removal. Cf. Georgia Kaolin Co. v. U.S., 5 Cir., 1954, 214 F.2d 284, and National Brick Co. v. U.S., 1942, 76 U.S.App.D.C. 329, 131 F.2d 30. To the extent that the owner's experts considered this fill contract as giving the owner a definite profit, to which sum the fair market value of the land, in its then state, should be superadded, the basis of their valuation would seem incorrect.

 Another factor bearing upon the method used by the Government experts on the one hand, and the owner's experts on the other, as to Tract 2, must also be considered. Since this tract was in the main intended for residential purposes, and suburban residences ordinarily require piped water and sewers, the availability of such water facilities to this tract was given great weight by the two sets of experts. The facts of the matter were that Circle, at the time of the first taking, had no legal right to insist that water be made available to this second tract. To get it Circle would have had to make arrangements with Tether, whose land practically surrounded Circle, save along the road, and with Packanack Utilities Company, which supplied the Packanack community with water and sewage facilities. Thus the Government experts valued this Circle land as if it had no piped water and sewage facilities available. Obviously, for residential purposes any such absolute lack made it relatively undesirable, and so they gave this land but relatively small value. On the other hand, since Tether had always been on friendly relations with Circle, and since Circle held a letter from the company supplying the Packanack community with ...

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