Speir

513 F.2d 638, 206 Ct. Cl. 828, 1975 U.S. Ct. Cl. LEXIS 31

• Court: United States Court of Claims
• Decided: January 17, 1975
• Docket: No. 728-71
• Status: Published

Opinion

Enwnent domain; taking; temporary avigation easement; just compensation; litigation expenses.—On October 17, 1973 (202 Ct. Cl. 1020, 485 F. 2d 643) the court held that there was a temporary taking of an avigation easement in the airspace above plaintiffs’ tract of land by flights of Government-owned helicopters at an altitude of 250 feet above the surface of the ground, and higher, and that the easement terminated on March 22, 1972. The case was remanded to the trial judge to determine the amount of plaintiffs’ recovery. After a trial for reception of evidence respecting the value of the temporary easement, Trial Judge Mastín G. White in a recommended decision filed April 9, 1974 concluded that, from the evidence presented on the issue of liability at the first trial, the tract was less desirable for agricultural rental purposes during the existence of the easement than before and that the rental value for agricultural use during such period was necessarily decreased thereby to some extent. However, there is no basis in the record for an inference that the rental value of the pine woodland or the hardwood swamp in the tract was decreased during the existence of the easement. Trial Judge White concluded that plaintiffs are entitled to $7,875 representing plaintiffs’ damages from the temporary taking, plus reimbursement for litigation expenses (including attorneys’ fee) under 42 U.S.C. § 4654(c) in the amount of $5,155.92. This case came before the court, having been submitted without oral argument, on defendant’s exceptions to the recommended decision. Upon consideration thereof, together with the briefs of counsel, since the court agrees with the recommended decision, the court affirmed and adopted the same as the basis for its judgment herein, and by order dated January 17,1975 concluded that plaintiffs are entitled to recover against defendant and entered judgment for plaintiffs for $13,030.92, plus an amount computed at the rate of 4% per annum on $7,875 from October 18,1967 to the time of payment, all as just compensation for the said taking.