HOUGH, Circuit Judge
(after stating the facts as above). Defendant in error suggests rather than asserts that this court has no jurisdiction, because the statute intended, when it gave to the District Court power to “hear and del ermine,” that the determination of that tribunal should be final. We do not so read United States v. Pfitsch, 256 U. S. 547, 41 Sup. Ct. 569, 65 L. Ed. 1084 (Sup. Ct., June 1, 1921). On the contrary, we think it was there plainly held that Congress intended, in section 30, to preserve the right to a jury and to create a cause of action governed by the “usual procedure of a District Court in actions at law for money compensation.” That ’such usual procedure gives rise to a final decision, over which (under Judicial Code, § 128 [Comp. St. § 1120]) this court “shall exercise appellate jurisdiction” seems especially plain.
[2] The writ taken by the United States — under guise of objecting (1) to certain evidence; and (2) to the allowance of interest— really complains of the size of the award. It is not denied that, since the only contest between the Langley Estate and the nation was the value of what the latter had taken, the one thing incumbent upon the plaintiff to prove was the fair and reasonable market value of this land. Further, it is admitted that there were no actual sales of similar property within reasonable limitations of time and contiguity upon which to base decision. The only possible evidence was that of experts ; i. e., persons who had studied the pecuniary possibilities of large lots of land abutting upon the waters of New York Harbor.
[3] As matter of law, expert testimony under even far less extreme circumstances than those just stated is admissible, as we held in Shields v. Norton, 143 Fed. 802, 74 C. C. A. 254. Under law too [80]*80well settled to require citation, the finding of the court below in an action at law, where a jury has been duly waived, has all the force of a verdict, and it is sufficient on this point to say that none of the opinion evidence offered by the experts on both sides was unlawfully received. There was beyond all question some evidence upon which to base a-finding of value in the sum of $2 per square foot.
[4] As to interest, it is to be noted that the acquisition of property under the Rever Act is only a summary species of what are commonly called condemnation proceedings. The justification for any condemnation is the necessity of taking something from a private person for a public use; and the justification for the summary procedure of the act under consideration is the overwhelming necessity for. speed under the dreadful pressure of war. But, whether the taking be by the familiar condemnation of peace or by the strong arm of a nation at war, the obligation upon the taker is always that recognized in this very statute, viz. to make' “just compensation” to the owner. Monongahela, etc., Co. v. United States, 148 U. S. 312, 13 Sup. Ct. 622, 37 L. Ed. 463. And see a general consideration of the matter in National City Bank v. United States (D. C.) 275 Fed. 855.
It is certain that the national immunity from payment of interest does not extend to condemnation proceedings. United States v. Rogers, 257 Fed. 397, 168 C. C. A. 437; United States v. Highsmith, 257 Fed. 401, 168 C. C. A. 441, affirmed 255 U. S. 170, 41 Sup. Ct. 282, 65 L. Ed. 569, Feb. 28, 1921. Since, therefore, just compensation by definition includes interest (cf. Agency, etc., Co. v. American, etc., Co., 258 Fed. 363, 369, 169 C. C. A. 379, 6 A. L. R. 1182) and this statutory method of arriving at compensation is analogous to condemnation proceedings, we are of opinion that the statutory rate prevailing in New York was rightfully allowed. No error is discovered upon the writ of the United States.
The city’s writ raises questions which may be stated as they are put by defendant in error: The Rangley Estate deed to the city conveyed nothing, because (1) the trustees had no power to convey and (2) the city liad no power to receive; and, if both these propositions be swept aside, then (3) the city’s ownership is of such a nature as to make no difference in the award to plaintiff below.
[5] The alleged inability of the Rangley trustees to convey is based upon the terms of their power to 'sell as embodied in the will which created them plus the Real Property Raw of New York (Consol. Raws, c. 50, § 105, subd. 1), which provides that:
“If the trust is expressed in the instrument creating the estate, every sale, conveyance or other act of the trustee, in contravention of the trust * * * shall be * * * void.”
But it will not do to stop with any narrow definition óf the word “sell,” which in its ordinary sense means a transfer of property for a fixed price in money or its equivalent. The Five Per Cent. Cases, 110 U. S. 471, at page 478, 4 Sup. Ct. 210, 28 L. Ed. 198. That immunity from - assessments for street openings might be the equivalent of the definition is assuredly an arguable point with those acquainted [81]*81with the certain weight of that burden in the city of New York. But the broader view is to consider the history of this land as revealed by the record and the disposition thereof made by Langley the testator. It was plainly his intent to make as easy as possible the carrying of this laud until the time came for its development. It was to that end that he gave to his trustees such extensive powers, and it must be assumed, in construing his will (including the quoted power), that it was the testator’s desire that the authority he gave should be used in furtherance of his general purpose.
This property had come to be a most valuable water front; harbor dev elopment had caught up to it, defendant in error’s argument rather broadly asserts that it was the last large frontage left unimproved and on the bay. To such a property streets are a necessity; access to the water front is a necessity of any development, in which respect property of this kind does not differ from other unimproved urban holdings.
It is pressed upon us that the state decisions, viz. Russell v. Russell, 36 N. Y. 581, 93 Am. Dec. 540, Scholle v. Scholle, 113 N. Y. 261, 21 N. E. 84, Turco v. Trimboli, 152 App. Div. 431, 137 N. Y. Supp. 343, and Wellbrock v. Roddy, 169 App. Div. 251, 154 N. Y. Sunp. 830, compel the conclusion that nothing but a cash sale will satisfy the terms of the will. An examination of these authorities will show that in each instance decision was rested upon the facts of the case in hand, and no such absolute rule as is here contended for was laid down, while in Thomas v. Evans, 105 N. Y. 601, 12 N. E. 571, 59 Am. Rep. 519, is presented a litigation far more nearly resembling the present, and in that case the court stated the point here made, and proceeded to decide the cause on other grounds.
On the other hand, the Matter of Sixty-Seventh Street, 60 How. Prac. (N. Y.) 264, is, in the reasoning of Judge Daniels, perfectly applicable to this case.
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HOUGH, Circuit Judge
(after stating the facts as above). Defendant in error suggests rather than asserts that this court has no jurisdiction, because the statute intended, when it gave to the District Court power to “hear and del ermine,” that the determination of that tribunal should be final. We do not so read United States v. Pfitsch, 256 U. S. 547, 41 Sup. Ct. 569, 65 L. Ed. 1084 (Sup. Ct., June 1, 1921). On the contrary, we think it was there plainly held that Congress intended, in section 30, to preserve the right to a jury and to create a cause of action governed by the “usual procedure of a District Court in actions at law for money compensation.” That ’such usual procedure gives rise to a final decision, over which (under Judicial Code, § 128 [Comp. St. § 1120]) this court “shall exercise appellate jurisdiction” seems especially plain.
[2] The writ taken by the United States — under guise of objecting (1) to certain evidence; and (2) to the allowance of interest— really complains of the size of the award. It is not denied that, since the only contest between the Langley Estate and the nation was the value of what the latter had taken, the one thing incumbent upon the plaintiff to prove was the fair and reasonable market value of this land. Further, it is admitted that there were no actual sales of similar property within reasonable limitations of time and contiguity upon which to base decision. The only possible evidence was that of experts ; i. e., persons who had studied the pecuniary possibilities of large lots of land abutting upon the waters of New York Harbor.
[3] As matter of law, expert testimony under even far less extreme circumstances than those just stated is admissible, as we held in Shields v. Norton, 143 Fed. 802, 74 C. C. A. 254. Under law too [80]*80well settled to require citation, the finding of the court below in an action at law, where a jury has been duly waived, has all the force of a verdict, and it is sufficient on this point to say that none of the opinion evidence offered by the experts on both sides was unlawfully received. There was beyond all question some evidence upon which to base a-finding of value in the sum of $2 per square foot.
[4] As to interest, it is to be noted that the acquisition of property under the Rever Act is only a summary species of what are commonly called condemnation proceedings. The justification for any condemnation is the necessity of taking something from a private person for a public use; and the justification for the summary procedure of the act under consideration is the overwhelming necessity for. speed under the dreadful pressure of war. But, whether the taking be by the familiar condemnation of peace or by the strong arm of a nation at war, the obligation upon the taker is always that recognized in this very statute, viz. to make' “just compensation” to the owner. Monongahela, etc., Co. v. United States, 148 U. S. 312, 13 Sup. Ct. 622, 37 L. Ed. 463. And see a general consideration of the matter in National City Bank v. United States (D. C.) 275 Fed. 855.
It is certain that the national immunity from payment of interest does not extend to condemnation proceedings. United States v. Rogers, 257 Fed. 397, 168 C. C. A. 437; United States v. Highsmith, 257 Fed. 401, 168 C. C. A. 441, affirmed 255 U. S. 170, 41 Sup. Ct. 282, 65 L. Ed. 569, Feb. 28, 1921. Since, therefore, just compensation by definition includes interest (cf. Agency, etc., Co. v. American, etc., Co., 258 Fed. 363, 369, 169 C. C. A. 379, 6 A. L. R. 1182) and this statutory method of arriving at compensation is analogous to condemnation proceedings, we are of opinion that the statutory rate prevailing in New York was rightfully allowed. No error is discovered upon the writ of the United States.
The city’s writ raises questions which may be stated as they are put by defendant in error: The Rangley Estate deed to the city conveyed nothing, because (1) the trustees had no power to convey and (2) the city liad no power to receive; and, if both these propositions be swept aside, then (3) the city’s ownership is of such a nature as to make no difference in the award to plaintiff below.
[5] The alleged inability of the Rangley trustees to convey is based upon the terms of their power to 'sell as embodied in the will which created them plus the Real Property Raw of New York (Consol. Raws, c. 50, § 105, subd. 1), which provides that:
“If the trust is expressed in the instrument creating the estate, every sale, conveyance or other act of the trustee, in contravention of the trust * * * shall be * * * void.”
But it will not do to stop with any narrow definition óf the word “sell,” which in its ordinary sense means a transfer of property for a fixed price in money or its equivalent. The Five Per Cent. Cases, 110 U. S. 471, at page 478, 4 Sup. Ct. 210, 28 L. Ed. 198. That immunity from - assessments for street openings might be the equivalent of the definition is assuredly an arguable point with those acquainted [81]*81with the certain weight of that burden in the city of New York. But the broader view is to consider the history of this land as revealed by the record and the disposition thereof made by Langley the testator. It was plainly his intent to make as easy as possible the carrying of this laud until the time came for its development. It was to that end that he gave to his trustees such extensive powers, and it must be assumed, in construing his will (including the quoted power), that it was the testator’s desire that the authority he gave should be used in furtherance of his general purpose.
This property had come to be a most valuable water front; harbor dev elopment had caught up to it, defendant in error’s argument rather broadly asserts that it was the last large frontage left unimproved and on the bay. To such a property streets are a necessity; access to the water front is a necessity of any development, in which respect property of this kind does not differ from other unimproved urban holdings.
It is pressed upon us that the state decisions, viz. Russell v. Russell, 36 N. Y. 581, 93 Am. Dec. 540, Scholle v. Scholle, 113 N. Y. 261, 21 N. E. 84, Turco v. Trimboli, 152 App. Div. 431, 137 N. Y. Supp. 343, and Wellbrock v. Roddy, 169 App. Div. 251, 154 N. Y. Sunp. 830, compel the conclusion that nothing but a cash sale will satisfy the terms of the will. An examination of these authorities will show that in each instance decision was rested upon the facts of the case in hand, and no such absolute rule as is here contended for was laid down, while in Thomas v. Evans, 105 N. Y. 601, 12 N. E. 571, 59 Am. Rep. 519, is presented a litigation far more nearly resembling the present, and in that case the court stated the point here made, and proceeded to decide the cause on other grounds.
On the other hand, the Matter of Sixty-Seventh Street, 60 How. Prac. (N. Y.) 264, is, in the reasoning of Judge Daniels, perfectly applicable to this case. That learned justice, arguing from the obvious purpose and intent of a testator who left a large unimproved tract of urban property and gave to his personal representatives a power of sale substantially like the one at bar, found in that testator’s executors a capacity so completely to divest themselves of title by merely selling lo1s as abutting upon unopened streets as to debar the estate they represented from receiving any compensation for- the taking of their land when the streets were actually opened. If executors or trustees who never in terms exercised a power of sale in the premises could in effect merely surrender that which they had power only to sell (as this defendant in error would argue), it would seem plain that executors who wished to do exactly the same thing could arrive at the desired result for a valuable consideration.
The Sixty-Seventh Street Case was largely rested upon Earle v. Mayor, 38 N. J. Law, 47, and both the decisions last cited were specifically approved in Simmons v. Crisfield, 197 N. Y. 365, 90 N. E. 956, 26 L. R. A. (N. S.) 663. We therefore hold that the Langley trustees had authority to do what they did in 1899, and (as pointed out by Daniels, J.) it is not necessary to inquire whether the convey-[82]*82anee in question was merely in fulfillment of a power or the act of a trustee as such.
[8] The second proposition, viz. that the city had no power to take the property is based upon that portion of section 992 of the City Charter which requires such conveyances to be by tire owners of land “an entire block in extent,” and it is said that the distance from that street which was nearest the shore line to the shore was not a “block long.” The exact number of feet from this 'street to the shore line is not specifically found, and we do not think any such finding material; for it is admitted that, however long or 'short was that distance, it measured the space between a street and navigable water.
The meaning given by lexicons of authority to the word “block” has often been judicially recognized, to wit, “the portion of a city inclosed by streets, whether occupied by buildings or not. Harrison v. People, 195 Ill. 466, 63 N. E. 191. But we must recognize obvious facts in a city like New York, delimited or marked off, not always by streets, but by water, and navigable water, which is as much a highway as any street; indeed, it has been held, and in respect of New York City, that “the general public has a right of passage over the places where land highways and navigable waters meet.” Knickerbocker, etc., Co. v. 42d Street, etc., Co., 176 N. Y. 408, at page 417, 68 N. E. 864, at page 866. We therefore do not hesitate in holding that a block, within the meaning of the quoted section of the charter, covers the distance between an existing street and the navigable waters of New York Harbor.
[7] By the conveyance of 1899 the city became vested with title to a portion of the land taken by the United States, for which the defendant in error has been awarded compensation, and the extent of that land is proven and found to be 81,120 square feet, and it was worth $2 a square foot on April 6, 1918. Although it owned this land, it held it “in trust for the public use.” Knickerbocker, etc., Co. v. 42d Street, etc., Co., supra.
It is now argued that, with a title of this kind and on evidence proving that “whether or not the city held title to” the 81,120 square feet the value of the entire property was just the same, and the award to the Eangley Estate should not be disturbed in amount. But, if the record be examined to ascertain why the expert witnesses substantially agreed that the value of the land was unchanged by the conveyance for street purposes, it is found that they all said in effect that the street value (i. e., land value of the streets) was “reflected” in the value of the land as bounded or limited by the proposed streets.
This means that, if and when the streets were opened, the abutting property would, by reason of the streets, be worth at least as much more as was the value of the land appropriated for highway purposes. But no streets have been opened in the physical sense, and the city owns the surface to be devoted to streets. That it is held in trust for a public purpose does hot in any way change its market value, and the city has been as much deprived of what it owned as was the Eang-ley Estate. To put it another way, the Eangley Estate has been award[83]*83ed ail that the land is worth, 'streets and all, because, when streets are opened, the land they have left will be worth the amount of the award. This will not do. 'i'lie government Is called upon to make just compensation for 1 hings as they are, not as they may be hereafter, and the compensation must flow to those who were actually deprived of what they own.
[8] Punce the valuation of this property on the testimony adopted by the court below is a mere matter of computation, and since the street laud was taken on April 6, 1918, it follows that the record before us shows that the city has been deprived of and is entitled to competís;:ticn for 81,120 square feet of land, worth $2 per foot, or $162,240, with interest thereon at 6 per cent, from April 6, 1918.^
The judgment is therefore excessive so far as the Langley Estate is concerned, but under such circumstances, where the error is capable of correction bv computation only, a reversal is not necessary; a re-mittitur or its equivalent may be directed by the appellate court. Van Boskerck v. Torbert, 184 Red. 419, 107 C. C. A. 383, Ann. Cas. 19161E, 171. Usually the remittitur ordered merely reduces the recovery against the defendants generally, but in this instance the remittitur should be in effect an assignment to the defendant the city of New York of its just proportion of the judgment, to wit, $162,240, with interest thereon from April 6, 1918. Upon the filing of such assignment within 30 days from the rendition of this decision, the judgment will be affirmed; otherwise, judgment reversed, and a new trial awarded.
The issuance of any mandate will be delayed for the above period of 30 days.