154 F.2d 224 | 2d Cir. | 1946
These are appeals by two claimants from a judgment, condemning parcels of land owned by them adjacent to the Military Academy at West Point, and granting compensation awards. The Village challenges both the judgment of condemnation and its award; Volkringer challenges only his award. The parcels seized were part of a much larger tract taken in 1942 by the Secretary of War: the parcel taken from the Village being about 380 acres of high land west of the Village, constituting most, if not all, of a watershed which supplies the local water company; that taken from Volkringer being eighteen acres of farm land. The alleged invalidity of the judgment of condemnation depends upon the following facts. On March 3, 1931, the Seventy-first Congress, by Public Law 795, 46 Stat. 1491, authorized the Secretary of War to condemn more than 15,000 acres in the vicinity of the Military Academy “provided, That nothing herein contained shall adversely affect the existing water supply, its sources, or pipe lines, of the Town of Highlands, New York.” When this act was before the House the representative for the district, in which the Village lies, objected, and, in order to obtain unanimous consent of the House which was necessary for its immediate passage, the Secretary of War, Patrick J. Hurley, wrote a letter to the Board of Trustees of the Village, the Town Board, and the Board of Education, the material part of which appears in the margin.
The petition for condemnation was filed on July 3, 1942; the Village answered on October 26, 1942, and judgment was entered on August 10, 1943, condemning the land and appointing three commissioners of appraisal, as provided in § 14 of the New York Condemnation Law, Consol.
Volkringer’s farm is made up of eleven acres of ordinary farm land on which there were a two story house, a barn and the usual outhouses. The commissioners appraised the buildings at $1,425, and the farm land at $1,100 — $100 an acre. Volkringer does not complain of this award. The other- seven acres were what is called “muckland,” a swampy parcel filled with a substance, known as “peat-moss,” useful as the top dressing of lawns, and for planting trees and shrubs: a “soil builder.” Volkringer called as an expert a person acquainted with this substance who computed that there were upon the seven acres about 112,000 cubic yards in situ, which expanded, on being dug out and ground, by about twenty-five per cent. The fair value he estimated at twenty cents a yard.
The Village’s defence against the judgment of condemnation is plainly invalid. Even if the Hurley letter had promised to surrender the plaintiff’s power of eminent domain, and if that promise had been supported by a valid consideration and been in all other respects valid as a contract inter partes, it would not have tolled the plaintiff’s power of eminent domain. That power, like other constitutional powers, not even a legislature can surrender. Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 38 S.Ct. 35, 62 L.Ed. 124; Galveston Wharf Co. v. Galveston, 260 U.S. 473, 43 S.Ct. 168, 67 L.Ed. 355. Besides, the letter made no promise not to use the power of eminent domain; it did promise, so far as there was “legal authority,” to acquire the existing water supply, “including the purchase at a price mutually agreeable,” of the Village’s interest “in the water-shed from which this supply is obtained,” and when it had acquired the water-shed, it promised to guarantee the right to use the water free of charge. At most this went no further than to agree to buy the water-shed, if the parties could fix a “price mutually agreeable.” That did not mean that if no such price could be found, the plaintiff should not have the land; and the only way to get it would then be by condemnation. What the Village apparently wanted was that the plaintiff should condemn the existing water system and to give it the water supply gratis. With the validity of that contract we have no concern, the Village is of course free to sue upon it whenever it chooses; but its existence is altogether irrelevant in this proceeding.
Coming then to the awards, there was a conflict of testimony, as is usually the case when real property is to be appraised. Strictly speaking, wild land like that here in question has really no market value, and any award is little better than a guess. Truej the test is the value of the best available use to which the ówner can put it (Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236), but
That review is strictly limited, owing to the exceptional powers of the commissioners. Section 14 of that act requires them to view the premises to be condemned, and apparently because of this, beginning m 1852 (Troy & Boston Railroad Co. v. Lee, 13 Barb., N.Y., 169), the New York courts have accorded to their awards an extraordinary immunity from review. We have collected a number of the later decisions in the margin,
It follows that the award of such a commission is nearly immune from any judicial review, because the record on which that review must be made does not contain all the evidence. How much the commissioners were governed by what they saw, and by any special knowledge they may have had of the value of land in the neighborhood, must needs be unknown. It is true that to some extent this inadequacy invades all records, which necessarily omit what cannot be preserved in print or in some other physical form; and it is because of this that findings of fact have the conclusiveness that they do have. But the difference between the usual situation and that at bar, although only one of degree, is very great, for here not even the skeleton of the missing evidence is preserved. When we reverse an ordinary finding, it •is because we see, or think we 'can see, that all the impalpable and evanescent factors, could not have overweighted those which have been preserved. But when, as here, we have not even a vestige of such possibly decisive factors, it is very seldom that we can act. It is true that the New York courts have always reserved a residual control over such awards. Clearly, if it affirmatively appears that the commissioners have followed a wrong rule law, their award should not stand; and indeed, the award on its face may be so wide of what is in the record that nothing seen on the view and no local acquaintance could justify it. It is enough to say that the case at bar is not of that kind. The commissioners awarded more than the plaintiff’s appraisals; and there was nothing in the testimony of the claimants’ witnesses that commanded unquestioned acquiescence, or should inevitably have overridden the personal judgment of the commissioners themselves.
Judgment affirmed.
“ * * * tile War Department will in so far as it lias legal authority, take all necessary steps to acquire the land upon which the water supply and system of the Village of Highland Falls is located, including the purchase at a price mutually agreeable, of the interest therein which said Village now owns in the water-shed from which this supply is obtained. When the water-shed is acquired, the War Department will guarantee to said Village of Highland Falls the right to the use of the water up to the capacity of the said Village of Highland Falls’ present water-shed without charge.
ÍÜ ❖ * * * * *
“This statement is made to you for the purpose of obtaining your consent to the bill now pending and will not be binding on either party if said bill fails to be passed by the present Congress.”
Perkins v. State of New York, 113 N. Y. 660, 21 N.E. 397; Matter of Thompson, 121 N.Y. 277, 24 N.E. 472; City of Syracuse v. Stacey, No. 1, 45 App.Div. 249, 61 N.Y.S. 165; Harlem River & Portchester R. Co. v. Reynolds, 50 App.Div. 575, 64 N.Y.S. 199; Matter of Board of Water Commissioners, 71 App.Div. 544, 76 N.Y.S. 11; Matter of Manhattan Ry. Co. v. Comstock, 74 App.Div. 341, 77 N.Y.S. 416; Matter of Town of Guilford, 85 App.Div. 207, 83 N.Y.S. 312; Matter of Simmons (Ashokan Reservoir), 132 App.Div. 575, 116 N.Y.S. 952; Matter of Willcox, 165 App.Div. 197, 151 N.Y.S. 141; Matter of Castle Heights Water Co. v. Price, 178 App.Div. 687, 165 N.Y.S. 816; Matter of Corporation Counsel of the City of New York, 188 App.Div. 668, 177 N.Y.S. 318; Matter of Bronx Parkway Commission, 192 App.Div. 412, 182 N.Y.S. 760; Adirondack Power & Light Corporation v. Evans, 226 App.Div. 490, 235 N.Y.S. 569; Matter of City of Rochester, 234 App.Div. 583, 255 N.Y.S. 801; Contra: People ex rel. City of New York v. Stillings, 138 App.Div. 168, 123 N.Y.S. 349.