Carlyle HERRING and Bessie M. Herring v. UNITED STATES
No. 206-56
United States Court of Claims
June 4, 1958
142 Ct. Cl. 769 | 162 F. Supp. 769
With respect to the Vicksburg property which the taxpayer acquired in 1944 and sold in 1947, the Commissioner ruled that the taxpayer‘s basis for detеrmining and reporting gain or loss on the sale, was the transferor‘s 1944 basis which basis, however, must be reduced by previously unallowed yearly depreciation from the yeаr of acquisition to the year of sale. The result of this action by the Commissioner was to include in taxpayer‘s gross income and to tax in 1947 income which, becausе of the disallowance of any depreciation deductions in prior years, had already been included in taxpayer‘s gross income and taxed, thus falling within the “Cirсumstances of Adjustment” provided for in
Since, with respect to both factories the taxpayer is entitled to the benefits of
We are unable to agree with defendant‘s position that the holdings of this court in Gooch Milling & Elevator Co. v. United States, 78 F.Supp. 94, 111 Ct.Cl. 576, and H. T. Hackney Co. v. United States, 78 F.Supp. 101, 111 Ct.Cl. 664, are inapplicable to the present case. Depreciation allowances are as much cоnstituent elements in the determination of the cost of goods sold as the inventories with which the Court was concerned in the Gooch and Hackney cases, and the erroneous disallowаnce by the Commissioner of one of the constituent elements (depreciation) in determining this plaintiff‘s cost of goods sold resulted in an erroneous inclusion in gross income herein under the holdings in the above cases.
Defendant‘s motion for summary judgment is denied. Plaintiff‘s motion for summary judgment is granted.
Plaintiff is entitled to recover, together with intеrest provided by law, and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Rule 38(c), 28 U.S.C.
It is so ordered.
JONES, Chief Judge, and LARAMORE, MADDEN and WHITAKER, Judges, concur.
Grover C. Robinson, Jr., Pensacola, Fla., Robinson & Roark, Pensacola, Fla., on the briefs, for plaintiffs.
Herbert Pittle, Washington, D. C., with whom Perry W. Morton, Asst. Atty. Gen., for defendant.
WHITAKER, Judge.
This is a suit for just compensation for the alleged taking of an easement of flight over plaintiffs’ property.
Since 1922 defendant has maintained Corry Field as a Naval Auxiliary Air Station, just outside of Pensacola, Florida, for the training of pilots. The planes used for training were light, single-engine, prоpeller-driven craft.
In 1949 plaintiffs purchased a lot im
In September 1950, after the erection of the cottage and house and other improvements on the property, the Navy sought and secured plaintiffs’1 permission to cut 40 to 50 of the tallest trees between the end of the runway and plaintiffs’ house. This removal of the shelter of the treеs permitted the planes to fly at elevations only 15 feet above plaintiffs’ house and only 7 to 9 feet above the television antenna on the top of the house, which was about 45 feet above the ground. This was the minimum safe glide angle. They occasionally flew at these elevations, but normally they flew from 45 to 75 feet аbove the ground in taking off, and from 100 to 150 feet in landing. There were no flights at night.
The removal of these trees, permitting flights at considerably lower elevations, unquestionably increased the danger from accidents, and also increased the noise and vibration, and thus affected the value of the property.
Defendant paid plaintiffs nothing for permission to remove the trees, nor for the flight easement at lower elevations, made possible by their removal. Somewhat later it did ask plаintiffs to execute a formal avigation easement over their property at elevations of 25 feet and above, but plaintiffs declined to do so, but made defendant a counter offer to sell the property to it at cost, or to give it an easement of flight at the desired elevation, provided it would terminate upon the sale of the property by plaintiffs. Nothing came of these negotiations.
Defendant has never paid plaintiffs anything for the easement of flight at elevations below 75 feet. Above this elevation, defendant for many years had flown its planes over the property. Plaintiffs are barred from maintaining a suit for compensation for such an easement, and seeks none. Plaintiffs say that flights at these elevations did not substantially interfere with their use and enjoyment of their property, but they say that flights at 45 feet or thereabouts do seriously interfere with its use and enjoyment. We do not doubt that this is so. Property over which planes occasionally рassed at not more than 7 or 9 feet above the antenna on the top of the house, and normally at slightly higher elevations, could not be very valuable as a residence. The removal of the shelter of the trees, which made possible flights at these low elevations, undoubtedly depreciated the value of the property.
It is for this depreciation in value, caused by the removal of the trees, resulting in frequent flights over the property at 45 feet above the ground, that plаintiffs are entitled to recover. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Causby v. United States, 60 F.Supp. 751, 104 Ct.Cl. 342; Id., 75 F.Supp. 262; 109 Ct.Cl. 768; Highland Park, Inc., v. United States, Ct.Cl., 161 F.Supp. 597; United States v. 4.43 Acres of Land, D.C., 137 F.Supp. 567; United States v. 29.40 Acres of Land, D.C., 131 F.Supp. 84; Reaver v. Martin Theaters of Florida, Inc., Fla., 52 So.2d 682, 25 A.L.R.2d 1451; Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535, L.R.A.1918A, 1034; Smith v. Nеw England Aircraft Co., 270 Mass. 511, 528, 170 N.E. 385, 69 A.L.R. 300; Capitol Airways v. Indianapolis Power & Light Co., 215 Ind. 462, 18 N.E.2d 776.
The taking occurred in 1950, and, hence, is not barred by the statute of limitations, nor by the Assignment of Claims Act (
The amount of just compensation is found by the trial сommissioner to be $5,500. The defendant does not contest this amount, if it is held that plaintiffs are entitled to recover at all. Plaintiffs claim a higher sum, but, notwithstanding the flights of these planes at these low elevations, plaintiffs have kept their property rented practically the entire time, and they have not shown any monetary loss аctually realized up to this time. However, we think they will have great difficulty in disposing of the property at all, and when they come to do so, we think that they will suffer a loss оf not less than $7,500, or perhaps more. At any rate, we are of opinion that the market value of the property has depreciated by $7,500 as a result of the lowering of the elevation of the flights over the property to 45 feet.
Judgment for $7,500, plus interest thereon at 4 percent per annum from October 1, 1950 to time of payment, will be entered against defendant and in favor of plaintiffs, all as just compensation for the taking. Upon payment thereof, defendant shall have an easement of flight for light, propeller-driven, single-engine airplanes at a minimum elevation of 45 feet above the surface of the ground and higher.
It is so ordered.
JONES, Chief Judge, and MADDEN and LITTLETON, Judges, concur.
LARAMORE, Judge (dissenting).
I believe the low-level flights have created not only noise and vibration, but have also created a hazard such as to make plaintiffs’ property practically worthless and hence constitutes a total taking.
I would give judgment to plaintiffs for the total fair market value of the property as just compensation provided plaintiffs surrender title to the Government. Ferrell v. United States, 49 Ct.Cl. 222; Kugler v. United States, 4 Ct.Cl. 407.