
    PETER SHIELDS v. THE UNITED STATES
    [No. F-125.
    Decided May 28, 1928]
    
      On the Proofs
    
    
      Eminent domain; just compensation; enoumdranees. — Just compensation for the taking of property under the act of October 6, 1917, as amended by the act of July 1, 1918, determined and allowed, and judgment suspended until plaintiff files releases of encumbrances.
    
      The Reporter’s statement of the case:
    
      Mr. John A. Beck for the plaintiff.
    
      Mr. Dan M. Jackson, with whom was Mr. Assistant Attorney General Herrrum J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. Plaintiff, Peter Shields, is now, and was during all of the times hereinafter mentioned, a citizen of the United States, residing in the city of Washington, District of Columbia.
    II. On December 2, 1918, plaintiff was the sole owner of thirty-six lots in the city of Cape May, New Jersey, more particularly described as follows:
    
      Parcel 1: Lots 7412, 7413, 7414, 7415, 7418, 7419, 7420, 7426, 7427,7428,7429, 7431,7432, 7433,7434,7435, 7436, 7437, 7438,7439, 7440, 7441, 7443, 7444,7445, 7451, 7452, 7453, 7454, 7458, 7459, 7460, 7461, on Plan A of the map of the Cape May Beal Estate Company, recorded in the office of the clerk of the county of Cape May, New Jersey, in Plan Book No. 1, pages 31 and 32.
    
      Parcel S: Lots 7455, 7456, and 7457, on Plan A of the map of the Cape May Eeal Estate Company recorded as in parcel 1 above.
    Nineteen of said lots were on Beach Avenue and seventeen of said lots were on New Jersey Avenue.
    III. Pursuant to the provisions of the act of Congress approved October 6, 1917, 40 Stat. 344, entitled “An act to provide for the acquisition of an air station for the United States Navy,” as amended by act of Congress approved July 1,1918, 40 Stat. 704, the President of the United States, being therein authorized to take over and appropriate for the United States such lands as he deemed necessary for such air station, issued and published a proclamation, dated December 2, 1918, 40 Stat. 1912, by which he did take over and appropriate for the United States for such public use all of the right, title, possession, improvements, and other rights appurtenant thereto in and to all of the lands located within the corporate limits of the city of' Cape May, New Jersey, as were situate and lying east of the west line of Yale Avenue and bounded on the south by the Atlantic Ocean, on the east by Cold Spring Inlet, and on the north by Cold Spring Harbor, excepting lots numbered 7233, 7234, 7235, and 7236, then owned by the United States, all comprising about 349 acres of land. Whereupon the aforesaid premises, as described in the President’s proclamation aforesaid, were immediately reduced to the permanent control and possession of the United States, and at all times since have been exclusively used for a naval air station. A copy of the aforesaid proclamation, omitting its quotation of the provisions of the aforesaid acts of Congress, is attached as Exhibit A to the plaintiff’s petition and is made a part of this finding by reference. The aforesaid area thus taken over by the United States embraced and included the plaintiff’s aforesaid thirty-six lots and parcels of land as described in Finding II.
    IV. Pursuant to the provisions of the aforesaid ant of Congress of July 1, 1918, the President of the United States, acting through the Secretary of the Navy, determined the sum of $22,225 to be the amount of just compensation due from the United States to the plaintiff for his aforesaid thirty-six lots. A notice of the President’s aforesaid award and determination of just compensation was delivered to the plaintiff on or about September 8, 1921. Thereafter and on September 12, 1921, the plaintiff notified the United States that the sum of $22,225 was unsatisfactory in amount and thereupon demanded of the United States the immediate payment of a seventy-five per cent part thereof, or the sum of $16,668.75.
    V. No part of said award or any other amount has been paid to plaintiff as just compensation for the taking of said' property.
    YI. On December 2, 1918, plaintiff’s thirty-six lots were subject to the following encumbrances of record:
    (a) Mortgage to German Savings & Deposit Bank dated October 20, 1909, recorded in Deed Book 90, folio 278, conveying lots 7434, 7435, 7436, 7460, and 7461 for $80,000.
    
      (b) Mortgage to German Savings & Deposit Bank dated August 14, 1912, recorded in Deed Book 109, folio 145, conveying lots 7458 and 7459 for $9,100.
    (c) Mortgage to Edward H. Jennings dated March 28, 1914, recorded in Deed Book 128, folio 259, conveying lots 7455, 7456, and 7457 for $5,000.
    (d) Mortgage to Mary E. Scully and John S. Scully dated March 15,1915, recorded in Deed Book 131, folio 337, conveying lots 7412 to 7420 and 7437 to 7445 for $50,000. The amount of this mortgage has been reduced by payment to the holders thereof, leaving a balance a,s of date hereof due and payable thereon of $5,000 and accrued interest.
    (e) Mortgage to Annie Sullivan dated June 29, 1915, recorded in Deed Book 133, folio 132, conveying lots 7451 to 7454 and 7426 to 7429 for $20,000.
    (f) Mortgage to John W. Painter dated August 7, 1915, recorded in Deed Book 136, folio 435, conveying lot 7473 and the east one-half of lot 7444, ancl also lot 7418 and east one-half of lot 7419, for $5,000.
    (g) Mortgage to Arthur Pollard dated August 7, 1915, recorded in Deed Book 136, folio 438, conveying lot 7445 and the west one-half of 7444, and lot 7420 and the west one-half of lot 7419, for $5,000.
    (h) Judgment to Edward H. Jennings dated October 21, 1915, recorded in Circuit Court of Cape May County, Docket F, folio 187, being a lien on lots 7416, 7417, 7430, 7431, 7432, 7433, and 7442 for $4,422.06.
    (i)' Judgment to John S. Unger, trustee, dated August 28, 1918,' recorded in New Jersey Supreme Court Judgment Docket No. 11, folio 216, in the amount of $6,187.90.
    (j) Judgment to Third National Bank of Philadelphia dated September 23, 1918, recorded in New Jersey Supreme Court Judgment Docket No. 11, folio 235, in the amount of $11,370.33.
    (k) Tax deed to city of Cape May dated September 22, 1919, recorded in Mortgage Book 160, folio 184, conveying lots 7459, 7460, and 7461 for $50.85.
    YU. On December 2, 1918, the fair and reasonable market value of the thirty-gix lots owned by plaintiff, the same being the lots described in Finding II hereof, was the sum of $51,150.00.
    The court decided that the plaintiff was entitled to recover.
   Moss, Judge,

delivered the opinion of the court:

The only question for determination in this case is the fair market value of the property taken as of the date of the taking, December 2, 1918. The board of valuation of commandeered property, after investigation, made an award in the sum of $22,225 as the amount of just compensation due from the United States to plaintiff for the thirty-six lots taken. Being dissatisfied with the award, plaintiff requested the payment of 75 per cent of same. No part of the award has been paid.

The record in this case is a tragical history of a pleasure resort which failed to materialize. Plaintiff’s evidence as to values seems to reflect the hopeful attitude of the witnesses toward the future development of this resort rather than the actual fair value of the land at the time it wa(s taken. These values did not exist on December 2, 1918, and have never existed. The commissioner held hearings at the site of the property and has found the fair and reasonable market value of same to be $51,150 as of December 2,1918, which the court believes fairly represents the true and correct value. Plaintiff is entitled to recover said sum with interest at the rate of 6 per cent per annum from December 2, 1918, until paid. The payment of this judgment, however, will be suspended until plaintiff shall file in this court proper releases of the encumbrances set forth in Finding YI.

GeeeN, Judge; Graham, Judge; and Booth, OMef Justice, concur.  