ALVA A. AARON, ET AL. v. THE UNITED STATES; TRINE S. ALNE AND ERNEST A. ALNE v. THE UNITED STATES, 167 Ct. Cl. 818

Per Curiam : These oases were referred pursuant to B,ule 57 (

a) to Lloyd Fletcher, a trial commissioner of this court, with directions to make findings of fact and recommendations for conclusions of law. The commissioner has done so in an opinion filed July 14, 1964. On August 3, 1964, the plaintiffs filed a motion to adopt the commissioner’s report and on August 24, 1964, the defendant filed an election to adopt the commissioner’s report. Since the court is in agreement with the findings and recommendations of the trial commissioner in the opinion, as hereinafter set forth, without oral argument it hereby adopts the same as the basis for its judgment in these cases.

As to case No. 489-58, the nine plaintiffs named in findings 1 and 12 are entitled to recover, and judgment is entered for them in the amounts listed opposite their respective names under the column headed “Damages” in finding 12, plus an amount computed at a rate of four (4) percent per annum from August 1,1953, to date of payment, all as part of just compensation for the taking of a flight easement.

As a condition of this judgment, defendant is vested with a permanent easement of flight for aircraft of any character, at altitudes of 400 feet and above, over the properties described in the court’s decision of January 11, 1963, as parcels 9, 10, 11, 12, 15, 24, 26, 27, and 33. Other than Clayton E. Smith and Delia A. Smith, who are no longer owners of parcel 33, plaintiffs will execute and deliver to defendant deeds describing and conveying the interest so taken. The plaintiffs in No. 42-60 are not entitled to recover and their petition is dismissed.

OPINION OP COMMISSIONER On January 11, 1963, the court handed down its opinion in the cases of Alva A. Aaron, et al. v. United States and Peter Andersen, et al. v. United States, 160 Ct. Cl. 295, 311 F. 2d 798. In the Andersen case, the court held that none of the plaintiffs were entitled to recover, and the petition in that case was dismissed. However, in the Aaron case, the court held that nine of the plaintiffs (and their respective spouses) were entitled to recover but dismissed the petition as to the remaining plaintiffs.

Those nine plaintiffs, and the parcel numbers assigned to their properties, are as follows: Name Parcel No. Jack W. Clippinger, et ux- 9 Joseph. B. Coburn, et ux_ 10 Sidney S. Cogburn, et ux- 11 Clifford E. Dahl, et ux_ 12 Ralph L. Eogg, et ux _ 15 Albert L. McGuire, et ux- 24 Raymond W. Morrett, et ux- 26 John E. Morris, Jr., et ux- 27 Clayton E.

Smith, et ux___ 33 The court directed that the Aaron case be remanded to the trial commissioner to take proof on the amount of just compensation to which the above-mentioned plaintiffs are entitled, such amount of just compensation to be “determined in accordance with this opinion.” Meanwhile, action had been withheld in the case of Trine S. Alne, et al. v. United States, No. 42-60, which involved parcels of unimproved land located in the same geographic area as the nine parcels in the Aaron case listed above.

By stipulation of the parties, approved by the commissioner, it was agreed that pertinent parts of the court’s findings of fact relating to the nine parcels of land above-listed in the Aaron case should apply equally to the parcels in the Abie case. As a result, the Aaron and Abie cases were consolidated for trial in Los Angeles, California, as to the amount of just compensation to which the nine plaintiffs in the Aaron case shall be entitled and as to the issue of liability and the amount of just compensation, if any, to which the plaintiffs in the A bie case may be entitled.

The Aaron Parcels As previously observed, in the Aaron case there remains for determination only the question of the amounts due from defendant to the nine remaining plaintiffs as fair compensation for the taking of a permanent avigation easement over their properties. In this connection, at page 6 of the opinion handed down January 11,1963, the court instructed the trial commissioner as follows: This leaves the question of the measure of damages.

In a case of this sort that measure is the difference in the value of plaintiffs’ properties before the taking by the United States in August 1953 a/nd their value after the full extent of the impairment of plaintiffs' me and enjoyment of them became apparent. United States v. Dickinson, supra. This was some time between August 1953 and October 1956, when the me of this ru/nway was largely discontinued in favor of the east-west runway. While since October 1956 this runway was used only occasionally, it seems apparent that defendant intends to use it at will for an indefinite period.

We, therefore, agree with, the Trial Commissioner that the defendant has taken a permanent easement of flight over the property of the named plaintiffs at altitudes of 400 feet and above. [Emphasis supplied.] A. The Date of Taking. From the above-quoted excerpt, as well as from earlier statements in the court’s opinion, it is entirely clear to me that the court has directly held the date of taking in this case to be in August 1953. However, counsel for plaintiffs strenuously disputes that this is true.

He argues that Judge Whitaker’s reference to the “taking by the United States in August 1953” must be deemed “an inadvertence” when viewed in the light of the supporting citation of United States v. Dickinson, 331 U.S. 745 (1947).

In brief, the argument is that since Dickinson established the date of taking in a gradual acquisition (water flowage) to be the date when the final consequences thereof were manifest (complete flooding), and since Judge Whitaker has stated in this case that the full extent of the impairment of plaintiffs’ properties became apparent (citing Dickinson, supra) “some time between August 1953 and October 1956, when the use of this runway was largely discontinued,” it must logically follow that he was in reality saying that the date of taking was October 1956.

Otherwise, say plaintiffs, the citation of Dickinson was meaningless. But, in my opinion, this argument fails to grasp the real meaning of Judge Whitaker’s language. He said that the full impairment to the properties occurred some time between August 1953 and October 1956, and his reference to the latter date merely pinpointed an outside date of impairment, a date when defendant had shifted the bulk of its flight activities to another runway. In my view, he intended to and did leave for future decision any determination of the date of final impairment following the presentation of valuation testimony.

For reasons now to be explained, I believe that the combined effect of the evidence both before Commissioner White and me shows that the full effect of the avigation easement had become apparent by at least the end of 1953 and probably before that date. We might well ask (admittedly with the benefit of hindsight) what a prospective and well-informed buyer would have known by that time.

Although defendant’s representatives then would have denied that their flights were low enough to constitute a taking, they would undoubtedly have admitted that, by August 1953, Air Force pilots were regularly and frequently flying jet aircraft over these properties with the full intention of continuing to do so at will. (Finding 31.) He would have learned that the properties were zoned so that they could be used only for residential and agricultural purposes (finding 7), which zoning accordingly fixed their highest and best use.

By at least the end of 1953, the residents in the area could have told our hypothetical buyer that defendant’s frequent low flights over their properties had directly and substantially interfered with their use and enjoyment thereof by shaking their buildings, interfering with radio and television reception, making it impossible to use the telephone or to conduct conversations, and, in some instances, adversely affecting their operation of chicken farms. (Finding 31.) Viewing the composite mass of his information, it is reasonable to conclude that our well-informed buyer would have recognized the existence of a permanent avigation easement over the properties and that, accordingly, his opinion of their value would have dropped to its perigee.

It is true that from this time until October 1956, there was a slow but steady increase in the number of flights over the properties (finding 22), which fact suggests some logic in plaintiffs’ contention that the Dickinson doctrine of creeping acquisition is applicable. However, such an

interpretation of the Dickinson decision implies that the Supreme Court there determined the date of taking on the basis of some arithmetical computation as to the number of gallons of water accumulating on the flooded property. I do not believe the Court intended any such “TJnivac” approach. It was concerned instead with whether “the consequences of inundation have so manifested themselves that a final account may be struck.” 331 U.S. 749.

Here, despite the increasing number of defendant’s overflights through October 1956, the record seems clear enough that, during the latter part of 1953, the basic consequences to the underlying properties had become manifest. The search for that elusive phantom, a comparison of fair market values, is difficult at best. Absent more compelling reasons than are present here, that search ought not to be further convoluted by a consideration of a host of cross influences, unrelated to the avigation easement, which over a period of time inevitably will affect property values.

Any effort to unscramble the ingredients in such an omelet would almost necessarily result in unfairness to one of the parties. Hence, when the record will permit, as here, the evaluator of damage should select an “after” valuation date as close as possible to the date of taking. Although they disagree as to the applicable date, counsel for both parties take the position in their 'briefs that interests in properties taken by the United States should be valued immediately before and immediately after the taking, that is to say, as of the date of taking.

There is no doubt that this is a general and frequently applied rule in eminent domain eases. See, for example, United States v. Virginia Electric Co., 365 U.S. 624, 632, 640 (1961); United States v. Miller, 317 U.S. 369, 374 (1943); Olson v. United States, 292 U.S. 246 (1934); and Potts v. United States, 130 Ct. Cl. 88, 126 F. Supp. 170 (1955). But, just as the traditional valuation rule of what-a-willing-buyer-would-pay-in-cash-to-a-willing-seller is “not an absolute standard nor an exclusive method of valuation” (United States v.

Virginia Electric Co., supra, at p. 633), so can there be instances where it is proper to disregard the usual immediately-before-and-immediately-after rule. See, for example, Jensen v. United States, 158 Ct. Cl. 333, 305 F. 2d 444. There the diminution in fair market value of the subservient lands was found to be the difference between their value on the date of taking and their value as of approximately one year thereafter. See the court’s finding 41.

In the present case, also, the court has clearly indicated its opinion that some period of time elapsed after the date of taking before the full impact of the easement on plaintiffs’ properties was apparent. For the reasons already discussed, I have concluded that the full impact date had arrived in the circumstances of this case by at least the end of 1953. B. Damages to the Aaron Parcels.

From the record in its entirety, I have found that the following table correctly reflects the damages suffered by each of the Aaron parcels as a result of the avigation easement imposed thereon by defendant in August 1953: Name of omier Before value After value Damages Ollppinger $13,000 $6,600 $6,500 Coburn. — . 13.500 6,760 6,760 Cogbum. _ 18,800 9,400 9,400 Dahl_ 23.500 11,750 11.750 Fogg. 13,250 6,625 6,625 McGuire.. 17.700 8,850 8,850 Morrett... 17,900 8,950 8,950 Morris. 22.700 11,360 11,360 Smith_ 83.500 41,760 41.750 A glance at the foregoing table is sufficient, of course, to show that it represents an average decline in value of one-half the pre-existing values.

While, obviously, one can have no deep-seated conviction as to the complete accuracy of such a valuation determination, it does not reflect a mere fatigue decision. For reasons now to be discussed, the nature of the available evidence relating to the amount of damage to these properties is such as to preclude any truly satisfactory determination other than by a broad inference in the nature of a jury verdict. This is nothing new in the Court of Claims. See Western Contracting Corporation v. United States, 144 Ct. Cl. 318, 320 (particularly finding 39); Needles v. United States, 101 Ct.

Cl. 535, 618 (1944); Chalender v. United States, 127 Ct. Cl. 557, 566, 119 F. Supp. 186 (1954); Davis v. United States, 164 Ct. Cl. 612, 287 F. 2d 168 (1964); and Cors v. United States, 119 Ct. Cl. 296, 306 (1951) (dissenting opinion). As the Supreme Court observed in United States v. Smith, 94 U.S. 214 (1876) at p. 219: In the estimation of damages the Court of Claims occupies the position of a jury under like circumstances. Damages must be proved. The court is not permitted to guess any more than a jury, but, like a jury, it must make its estimates from the proofs submitted.

The result of the best judgment of the triers is all that the parties have any right to expect. At the valuation trial in this case, each party presented opinion evidence by one expert real estate appraiser. As usual, the experts took highly polarized positions ranging from unbridled optimism to dejected melancholy. Such extremes have come to be expected and no doubt arise from the almost incredible complexities inherent in the task of valuation. As the court said in Andrews v. Commissioner, 135 F. 2d 314 (C.A. 2, 1943) at p. 317: * * * “Value” is not a single purpose word.

Men have all but driven themselves mad in an effort to definitize its meaning. The problem arises in its most perplexing form when, as here, property has not in fact been sold and an effort is made to ascertain what it would have fetched if it had been sold. The answer is obviously a guess. Both plaintiffs’ witness, John A. Mawhinney, and the defendant’s witness, Bobert A. Bowe, were experienced and competent real estate appraisers.

Each expressed an opinion as to the fair market value of the properties before the easement was imposed in August 1953, and, with the exception of one property, their “before” estimates were surprisingly close. Their wide divergences of opinion occurred in their estimates of the “after” values reflecting the damages flowing from the easement. See the comparative table contained in finding 7, infra. From hearing the testimony of the two experts, and from a detailed study of the record, I have concluded that Mawhin-ney’s estimates of the “before” values as of August 1953 are reasonable and should be accepted.

His testimony reflected considerable knowledge of local conditions and demonstrated meticulous and painstaking preparation. His analysis and use of comparable sales data for the “before” period were likewise impressive, and, as previously noted, even the Bowe “before” estimates were reasonably close in most instances. I find it impossible, however, to accept the testimony of either appraiser as to the “after” values of these properties.

Admittedly, they were quite handicapped by the nearly complete absence of any sales activity within the approach zone, wherein all these properties lie, from August 1953 through October 1956. Unquestionably, the market in the area was in a confused state. Faced with this lack of market information, Mawhinney appears to have placed great reliance for his “after” values on a sale in 1963 of one of the properties here involved owned by Clayton E. Smith, et ux. That sale, ten years after the taking of the easement, was for a price approximately 75 percent below his estimate of the property’s “before” value.

This sale appears to have been the major factor in Mawhin-ney’s ascertainment of “after” values because he arrived at them simply by reducing his “before” values approximately 75 percent on all the properties. While there appears no valid objection to treating all the affected properties alike, and while the Smith sale is indicative of a sharp decline in property values in the area, in my judgment, Mawhinney has overemphasized the effect to be given this sale so many years removed from the date of taking. Within such a span of years, many other factors will affect the market.

Eowe, on the other hand, weakened his appraisal by apparently continuing to believe, as he had in the first trial, that the defendant had not really taken an avigation easement susceptible to valuation. For example, although he believed several properties had declined, in value, he found no change whatever in the value of two properties, and only a $500 diminution in value of another property, the latter three properties together comprising those which Commissioner White found to be the most affected by the overflights.

One of those most affected properties was the Morrett parcel which Eowe appraised at $20,000 “before” value in August 1953 and at exactly the same “after” value in October 1956. He did precisely the same thing in his testimony at the earlier trial before Commissioner White who commented at page 18 of his opinion, as follows: An appraiser testifying on behalf of the defendant expressed the opinion that as of July 1, 1953, the fair market value of parcel 27 [Morrett] was $20,000, and that this parcel continued to have the same value thereafter.

However, this appraiser erroneously assumed that no_ flights of jet aircraft were made over parcel 27 at any time below the 500-foot level. Mr. Eowe was not able satisfactorily to explain this anomaly, other than to attribute it to a combination of market forces occurring over tbe three-year period.

No doubt, as he testified, a before and after valuation with a three-year interval posed a “difficult situation from an appraiser point of view.” However, the fact that his value opinions on this property were identical at both trials leads almost irresistably to the conclusion that his judgment continued to be affected by his deep-felt conviction that in the “value” sense, the easement had really done nothing to the property. Because of this, I have felt it necessary to discount some portions of the Eowe testimony.

As previously indicated, the record is convincing that the true damages to the Aaron parcels lie somewhere between the extremes stated by the opposing experts. See Bosland, Tax Valuation by Compromise, 19 Tax L. Rev. 77, 78 (Nov. 1963). From a careful study of all the testimony, it is recommended that the court enter judgments for the Aaron plaintiffs in the respective sums enumerated in the last column of the damage table set forth above.

To those respective sums there should be added an amount computed at the rate of four (4) percent per annum from August 1, 1953 to date of payment, all as part of just compensation for the taking. Finally, it is recommended that, as a condition of its judgments, the court hold that defendant is vested with a permanent easement of flight by aircraft of any character over each of the Aaron parcels at elevations of 400 feet and above. The Abie Parcels In my opinion, the Abie plaintiffs are not entitled to recover.

It has been stipulated that they acquired title to the three parcels described in their petition on August 28, 1956. This, of course, was long after the taking by defendant which occurred, for reasons previously explained, in August 1953. Accordingly, these plaintiffs are not entitled to recover by reason of the anti-assignment statute. 54 Stat. 1029; 31 U.S.C. Sec. 203. See, also, Potts v. United States, 130 Ct. Cl. 88, 93, 126 F. Supp. 170

(1955) FINDINGS OF FACT 1. On January 11,1963, the court handed down its opinion and findings of fact in the cases of Alva A. Aaron, et al. v. United States, No. 489-58 and Peter Andersen, et al. v. United States, No. 113-59. In the Andersen case, the court held that none of the plaintiffs were entitled to recover, and the petition in that case was dismissed. However, in the Aaron case, the court held that nine of the plaintiffs (and their respective spouses) were entitled to recover but dismissed the petition as to the remaining plaintiffs.

Those nine plaintiffs, and the parcel numbers assigned to their properties, are as follows: Name Parcel No. Jack W. Clippinger, et ux- 9 Joseph B. Coburn, et ux_ 10 Sidney S. Cogburn, et ux- 11 Clifford E. Dahl, et ux- 12 Ralph L. Fogg, et ux- 15 Albert L. McGuire, et ux- 24 Raymond W. Morrett, et ux- 26 John F. Morris, Jr., et ux_ 27 Clayton E.

Smith, et ux_ 33 The court directed that the Aaron case be remanded to the trial commissioner to take proof on the amount of just compensation to which the above-mentioned plaintiffs are entitled, such amount of just compensation to be “determined in accordance with this opinion.” 2. Meanwhile, action bad been withheld in the case of Trine S. Alne, et al. v. United States, No. 42-60, which involved parcels of unimproved land located in the same geographic area as the nine parcels in the Aaron case listed above.

By stipulation of the parties, approved by the commissioner, it was agreed that pertinent parts of the court’s findings of fact relating to the nine parcels of land above-listed in the Aaron case should apply equally to the parcels in the Alne case. As a result, the Aaron and Alne cases were consolidated for trial in Los Angeles, California, as to the amount of just compensation to which the nine plaintiffs in the Aaron case shall be entitled and as to the issue of liability and the amount of just compensation, if any, to which the plaintiffs in the Alne case may be entitled. 3.

The detailed findings of fact made by the court in the Aaron and Andersen decision of January 11, 1963, are incorporated herein by reference. Wherever any of those findings are either repeated or summarized herein, it has been done only in the interests of convenience and clarity. 4. All of the parcels of land involved in these cases are located in the approach zone to the southwest end of the northeast-southwest runway at Air Force Plant No. 42 at Palmdale, California.

Under an official zoning plan adopted by the County Supervisors for the County of Los Angeles, all parcels bear a zone classification of A-2-5 (heavy agriculture, with a minimum lot area of 5 acres). 5. In August 1953, the United States took a permanent avigation easement over all of the properties here involved for flights of its aircraft at altitudes of 400 feet and above. Substantial interference with plaintiffs’ use and enjoyment of their properties resulted. The full extent of the impairment of plaintiffs’ use and enjoyment of their properties had become apparent at least by the end of 1953. 6.

Prior to defendant’s taking of the avigation easement, the highest and best use of the properties involved was that of single-family residences, coupled with poultry operations, and an insignificant amount of subsistence, or parttime, farming. After the taking had occurred, the highest and best use of the properties had changed to that of single-family residences only, except that in the case of a few properties, sufficient irrigation water was available to justify a small amount of subsistence farming. 7. The trial held pursuant to the court’s remand, order was devoted exclusively to valuation testimony.

Plaintiffs presented opinion evidence by one expert real estate appraiser, and defendant did likewise. Both plaintiffs’ witness, John A. Mawhinney, and the defendant’s witness, Eobert A. Eowe, were experienced and competent real estate appraisers. Mawhinney expressed opinions as to the highest and best use and the fair market values of the properties on a “before-taking” and “after-taking” basis both as of August 1958 and as of October 1956.

Eowe, on the other hand, expressed his opinions as to the highest and best use and the fair market values of the properties solely on a “before-taking” basis in August 1953 and on an “after-taking” basis in October 1956. The following comparative table has been prepared to show their differences of opinion: 8. Of the two expert presentations, that of Mawhinney was the more impressive. In preparing himself to express his ultimate conclusions, he inspected all properties in detail, interviewed the owners, made a study of the entire approach zone area, and inspected all surrounding areas.

He studied relevant records and maps in the offices of the local governmental authorities and made a market data survey in order to compare sales of other similar properties from 1951 through 1959. This information was implemented by interviews with local real estate brokers and bankers familiar with the area involved.

He found that, due to the flights, local brokers were loath to take any listings for sale of any properties located within the approach zone, and that, while the banks were willing to make loans secured by properties located in the general area, those properties lying within the approach zone bore the lowest loan classification. He found and studies 25 sales of properties in the area for the period 1951-1956. He could find no sales whatever for the period 1957-1959. Of these 25 sales, the truly comparable ones took place prior to August 1953 and hence are significant only to “before-taking” valuations.

The relatively few sales after August 1953 do not appear to be comparable. One of those sales was to the Abie plaintiffs who at the time did not seem to have recognized the existence of the avigation easement. The other post-1953 sales were of properties either lying outside the approach zone or within that part of it which had been zoned industrial. Thus, they were hardly comparable to the properties here involved. Mawhinney concluded that the market data between 1953 and 1956 showed a “confusing situation.” However, his study of all relevant data prior to August 1953 was thorough and painstaking.

The opinions which he derived therefrom as to the values of these properties before August 1953, as shown in the comparative table set forth in the preceding finding, were reasonable. They reflect, as closely as possible, the fair market values of each property involved before the taking of the avigation easement in August 1953. 9. For his opinions as to “after-taking” values, Mawhin-ney appears to have placed great reliance on a sale in 1983 of one of the properties involved, namely, the Clayton E. Smith property. It was a residence and poultry farm. Commencing in 1960, Mr.

Smith listed the property for 18 months at $75,000 with no success whatever. He then dropped the price to $55,000, again without success. In 1963 he managed to sell the property for $35,000 of which amount $15,000 was attributable to chickens and movable equipment. Thus, the final selling price for the real estate ($20,000) was approximately 75 percent below Mawhinney’s estimate of the “before-taking” value ($83,500). Other than the Alne purchase in 1956, the Smith sale was the only sale of A-2-5 property within the approach zone following the date of taking in August 1953.

While he stated that this sale was only one factor in his final evaluation of all properties, the fact is that, in arriving at his “after-taking” values, Mawhinney simply made an “across the board” reduction from his “before-taking” values of 75 percent. This method results in attributing to the avigation easement the entire fault for the decline in value of the Smith property over a 10-year period.

It fails to take into account, as the record shows, that property values during said 10-year period were also being affected, both upwards and downwards, by such factors as increasing population in the Palmdale area resulting in greater demand for homes, unemployment resulting from plant closings, zoning restrictions, and intermittent depressions in the poultry business. From the record as a whole, it is estimated that, when all factors affecting value are taken into account, no more than 50 percent of the decline in value of the Smith property can fairly be attributed to the avigation easement. 10.

Appraiser Rowe has been familiar with these properties a number of years. In 1956 he did rather extensive appraisal work in the Palmdale area covering parcels of land which were acquired by the United States in connection with Air Force Plant No. 42. He testified at both trials in this case as the defendant’s expert appraiser. He summarized the historical development of Air Force Plant No. 42 and described its generally favorable effect on the economy of the area, a part of which, effect was to cause an increase in the demand for residential properties.

He also investigated the poultry market during the years involved and found that it had both prospered and suffered at various times. In addition, he found that chicken ranches located in proximity to the Air Force Plant, such as some of the properties here involved, were affected adversely by aircraft overflights and by competition with the aircraft manufacturers at the base for the available labor supply. Pie believed that the cumulative effect of these influences was to increase the demand for residential properties but to decrease the demand for chicken ranches.

In preparing his testimony for the earlier trial of this case, Mr. Kowe had believed (erroneously, as it developed) that no flights of jet aircraft were made over the properties involved below the 500-foot level. At the second trial for determination of damages, it was apparent that he had made a bona -fide effort to adjust his opinions to the court’s finding that a flight easement had been imposed upon these properties.

He was partially successful in this effort, but as may be seen from the comparative table in finding 7, supra, in the case of the Coburn and Morrett properties he found no change in value, and found only $500 decline in value of the Olippinger property. The record shows, however, that these three properties were the properties nearest to the runway and were among those found by the court to be especially vulnerable to low-flying aircraft. Mr. Rowe attributed this anomaly to a combination of market forces, but his testimony in this regard was not convincing. ill.

With respect to the Abie properties, the following findings of fact are derived from a stipulation between the parties filed herein on July 1,1963: A. The Ahie parcels are located in the approach zone to the southwest end of the northeast-southwest runway at Air Force Plant No. 42. B.

(1) During the period from August 1, 1953, until October, 1956, jet aircraft operated by Government personnel at Air Force Plant No. 42 regularly and frequently flew over the Alne parcels at an altitude of 400 feet above the ground.

(2) While the Alne parcels were unimproved, the vibrations from the flights referred to in paragraph B (1) shook buildings located on adjacent parcels in the same area and the noise from such flights interfered with radio and television reception, made it impossible to use the telephone or to conduct a conversation person-to-person, made some of the occupants of said adjacent parcels nervous and, in some instances, caused chickens to “pile up” in chicken houses on some of such adjacent parcels.

(3) The flights by jet aircraft referred to in paragraphs B (1) and B (2) above constituted direct, immediate and substantial interferences with the owners’ enjoyment of the Alne parcels.

(4) When the jet aircraft referred to in paragraphs B (1), B (2), and B (3) began to make frequent and low flights over the Alne parcels, it was the intention of the defendant that such flights should continue for the indefinite future. However, because of changes that were subsequently made in the runways at Air Force Plant No. 42, Government personnel ceased to make frequent flights over these parcels at altitudes of less than 500 feet above the ground in about October, 1956. C. Record title to the Alne parcels became vested in plaintiffs, as follows:

(1) Parcel 1 (Lot 41 of Tract 7670) by quitclaim deed dated August 28, 1956, from Agnes B. Simpson to Ernest A. Alne, a married man, as his separate property. Such deed was recorded December 17, 1958, as document number 3842 in Book D308 at page 466 of official records of Los Angeles County, California.

(2) Parcel 2 (Lot 61 of Tract 7670) by quitclaim deed dated August 28, 1956, from Agnes B. Simpson to Ernest A. Alne, a married man, as his separate propr erty. Such deed was recorded December 17, 1958, as document number 3844 in book D308 at page 468 of said official records.

(3) Parcel 3 (Lot 60 of Tract 7670) by quitclaim deed dated August 28,1956, from Paul T. Simpson to Trine S. Alne, a married woman, as her separate property. Such deed was recorded December 17,1958, as document number 3843 in book D308 at page 467 of said official records. . 12.

It has been determined from the record as a whole that the Aaron parcels have been damaged by defendant’s taking in August 1953 of a permanent avigation easement thereover for flights of its aircraft at altitudes of 400 feet and above, as follows: Name of owner Before value After value Damages Clippinger-$13,000 $6,600 $6,500 Coburn_ 13.500 6,750 6,760 Cogburn.^.. 18,800 9,400 9,400 Dahl.. 23,600 11.750 11.750 Fogg. 13,250 6,625 6,625 McGuire... 17.700 8,850 8,850 Morrett-.-. 17,900 8,950 8,950 Morris_ 22.700 11,350 11,350 Smith. 83.500 41.750 41.750 13.

So far as the Alne parcels are concerned, the record is clear that by the time of the acquisition thereof by the Alne plaintiffs on August 28,1956, the properties had already suffered their maximum damage from the easement. Any change in the value thereof which may have occurred after August 28, 1956, was due to factors other than the defendant’s taking of the easement.

CONCLUSIONS OB LAW Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes as a matter of law that in No. 489-58, the nine plaintiffs named in findings 1 and 12 are entitled to recover, and judgment is entered for them in the amounts listed opposite their respective names under the column headed “Damages” in finding 12, plus an amount computed at a rate of four (4) percent per annum from August 1, 1953, to date of payment, all as part of just compensation for the taking of a flight easement.

It is further concluded that, as a condition of judgment, defendant is vested with a permanent easement of flight for aircraft of any character, at altitudes of 400 feet and above, over the properties described in the court’s decision of January 11, 1963, as parcels 9, 10, 11, 12, 15, 24, 26, 21, and 33. Other than Clayton E. Smith and Delia A. Smith who are no longer owners of parcel 33, plaintiffs will execute and deliver to defendant deeds describing and conveying the interest so taken. It is further concluded that the plaintiffs in No. 42-60 (Trine S. Alne, et al. v.

United States) are not entitled to recover and their petition is dismissed. Tlie Aaron case originally Involved 38 different parcels of land, and the Andersen case involved 15 different parcels. For example, the following statements appear on pages 298 and 299 of Judge Whitaker’s opinion: * * * So long as these flights did not seriously interfere with the use and enjoyment of their properties, the defendant did not impose a servitude upon, them for which plaintiffs are entitled to compensation.

In our opinion this did not occur until August 195S for the reasons now to be stated. [Emphasis supplied.] * * * The Trial Commissioner fixed August 19SS as the date of the talcing, because at that time Air Force pilots began mating test flights. We do not think this is determinative, but the record does, not- show substantial interference before that date, but it does show it thereafter. Hence, we see no reason to depart from the date fixed by the Trial Commissioner.

Plaintiffs’ counsel in oral argument accepted that date as the one on which the statute of limitations began to run. [Emphasis supplied.] The importance of this argument to plaintiffs stems from the fact that, between August 1953 and October 1956, substantial improvements were made to five of the Aaron parcels. Thus, if the date of taking is October 1956, those parcels start with a significantly higher “before-taking” valuation than would be the case of such valuation in, August 1953 with a consequent increase in the amount of damages.

With respect to the Alne parcels, the establishment of am October 1956 date of taking is even more critical. Since tbe Alne plaintiffs acquired tbeir properties after August 195$, they cannot recover at all if that is the date of taking. Assignment of Claims Act of 1940, 54 Stat. 1029, 31 U.S.C. Sec. 203; Potts v. United States, 130 Ct. Cl. 88, 93, 126 F. Supp. 170 (1955). As will be shown below, tbe real estate appraisers who testified herein were able to arrive at valuations of the properties as ofi August 1953 and as of October 1956 using familiar and accepted techniques of appraisal.

What they could not say, however, was that the difference between the two values was solely attributable to the impact of the avigation easement. This was because too many extraneous factors affecting the property values had intervened during the three-year period. Yet, it goes without saying that, in this type of case, the united States is liable only for the damage which its taking has caused to the property. United States v. Causby, 328 U.S. 256 (1946). “The pattern has become all too familiar in the valuation cases, where opinion evidence is sometimes the only evidence available.

The claimant seeks to establish a benchmark in the stratosphere. Defendant burrows down to bedrock (which is usually about as far as it can go). The trier of the facts is, of course, in a quandary. Even by the simplest route (which the parties seem always to assume he will take), the median between the two extremes is somewhere in the upper atmosphere.” Opinion of Commissioner Evans in Western Contracting Corporation v. United States, supra, at page 334. It will be noted from this table that the appraisers used. varying dates.

Mawhinney valued the properties on a “before” and “after” basis as of August 1953 and as of October 1956. The differences in his sets of figures for the two dates were caused solely by the addition of the value of improvements placed on the properties during the three-year interval. Rowe, on the other hand, used a “before” date of August 1953 and an “after” date of October 1956 and made estimates accordingly.

However, in his requested findings of fact, counsel for defendant has taken the position that the “after” values testified to by defendant’s appraiser as of October 1956 may also be considered as his opinion of the “after” values as of August 1953. Eor example, the record shows Intermittent depressions In the chicken and egg markets. The Smith, property was operated as a poultry farm.

This difficulty with the meaning of “value” is not unusual. “In eminent domain, as in rate mating, in corporate reorganization, in taxation, and in nearly every other legal field, the most vital disputes as to how much a given property is ‘worth’ are due, not to any mere quantitative differences of opinion such as would arise if two persons were trying to guess the weight of a boot by looting at it, but rather to a fundamental disagreement as to the very meaning of the ‘value’ the amount of which is to be ascertained by the procedure at a trial.

To revert to our analogy of weight-guessing, disputes as to value are analogous to those that would arise about the weight of a book if guesser A took ‘weight’ to mean the poundage that would be registered on a well-tested scale; if guesser B took it to mean poundage on the particular scale, however inaccurate, that happens to be at hand; if guesser C took it to mean how heavy the book looks; and if guesser D took it to mean the weightiness of the contents of the book as a contribution to science. This simile is not overdrawn.” Orgel, Valuation under the Law of Eminent Domain¡, p. v (1936).

Even -without the bar of the anti-assignment statute, the Alnes would' not be entitled to recover for the reason that they were unable to show any further damage to the properties following their acquisition thereof. Their own appraiser testified that he knew of no factors that would have affected the value of the properties after the Alnes had acquired them which did not already exist before that time.