Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Moore, Circuit Judge (concurring). Waterman, Circuit Judge (dissenting). Hays, Circuit Judge (dissenting).
This is an appeal by the United States from a September 30, 1965 judgment of the United States District Court for the Southern District of New York entered upon an unreported memorandum opinion of July 1, 1965 confirming awards made by commissioners in favor of thirteen tenants of buildings situated on land condemned for use as a United States Post Office site. The awards were for the value of trade fixtures claimed by the tenants to be compensable under the rules laid down by the district court in its reported opinion, 225 F. Supp. 498 (SDNY 1963, 1964), concerning these premises.
The condemnation complaint was filed on July 26, 1962; and an amended complaint and declaration of taking were filed on September 30, 1963 specifying that the interest to be taken was "an estate in fee simple to said land together with the improvements thereon and appurtenances thereto, including all estates and interests therein, excepting, however, tenants' removable trade fixtures." The issue of just compensation was determined by three commissioners appointed under the provisions of Fed.R.Civ.P. 71A(h) who made their report granting awards as to both the fee and the tenants' interests, including the tenants' fixtures. The district court confirmed the awards of the commission stating that the commissioners' conclusions "on the fixture claims are in accordance with the law as determined in the two opinions of the Second Circuit in United States v. Certain Property, etc., 306 F.2d 439 and 344 F.2d 142." The Government appeals from these awards to the tenants. It also appealed in a related case, United States v. Certain Property, 374 F.2d 138 (2 Cir. 1967) from awards to the fee owners.
The appellee tenants are business concerns who occupied premises in buildings on the condemned land under leases granted to them by the feeholders. The leases were all short term leases without renewal options; seven had expired prior to the date of taking, September 30, 1963, four expired within six months after the taking, and the remaining two expired 19 months after the taking.
The issue before us concerns the payment of compensation to these tenants for their fixtures. The district court found the fixtures involved to be "removable trade fixtures" and compensable under the standards we set forth in United States v. Certain Property, 306 F.2d 439 (2 Cir. 1962),*fn1 followed by us in 344 F.2d 142 (2 Cir. 1965). We agree with this conclusion. The Government contends, however, that the court below erred in requiring it to pay compensation for fixtures despite the provision in the declaration of taking which excepted "tenants' removable trade fixtures" from the taking. We agree with the trial court that the tenants must be compensated for their fixtures despite the Government's attempt to exclude them from the taking, but we do not base this conclusion on the "subjacent support" theory advanced by the learned trial judge.*fn2 The Government cannot deny compensation for fixtures by simply writing an exception into the declaration of taking excluding from compensation property which is in fact taken. See United States v. General Motors Corp., 323 U.S. 373, 65 S. Ct. 357, 89 L. Ed. 311 (1945).
Having decided that the fixtures here involved are compensable, we reach the question of the measure of compensation to be used. The court below confirmed the awards of compensation that had been made by the commissioners. The commissioners arrived at compensation allowances by starting with the "new value" of the fixtures; from that valuation depreciation on a twenty year straight line basis was first deducted and then, from that remainder, there was deducted "what a willing buyer would pay a willing seller" for the fixtures after their removal "and after allowing for the cost of disassembly and reassembly."
The Government's principal objection to this method of valuation is that the depreciation of the fixtures over twenty years is unrealistic; tenants with shortterm leases have no assurance that they can remain in their respective premises and enjoy the use of the fixtures there for twenty years or remove them after tenancy expiration for use elsewhere.
We agree with the Government's contention. Unless otherwise agreed between him and his landlord a tenant has no assurance that he will be able to derive any value from this class of fixtures beyond the period of his lease, and he should be required to depreciate these fixtures completely over the term of the lease regardless of their normal period of usefulness. See United States v. Certain Property, 344 F.2d 142, 145 (2 Cir. 1965). It is true that holdover tenants may in some instances continue to enjoy their occupancy of premises for long periods of time without the protection of a lease, but this does not mean that they have a legally protected interest in remaining and making use of the fixtures. In the absence of some legally enforceable assurance that they will be able to remain on their rented premises, we cannot assume that the tenants would be able to derive any value from their fixtures beyond the expiration of their leases and therefore there is no basis for giving compensation to any tenant beyond his lease expiration date. Indeed, in this case there is evidence that even if the Government had not proceeded to condemn, the tenants would not have been able to stay because the owners of the fee were advancing their plans to convert the property to another use at the time of condemnation. See United States v. Certain Property, 374 F.2d 138 (2 Cir. 1967).
The claims of the appellees are remanded to the district court for redetermination, the court to have in mind the extent and character of each petitioner's leasehold interest in the condemned real estate at the time of condemnation.
Appellees seasonably submitted a petition for rehearing and a suggestion that this be in banc. They contend that the severe limitation imposed by the majority of the panel on the award of compensation for "middle category" trade fixtures of tenants under short-term leases ran counter to relevant portions of recent decisions of two other panels in the Foley Square condemnation cases, United States v. Certain Property Located in the Borough of Manhattan, etc., 306 F.2d 439 (2 Cir. 1962), and 344 F.2d 142 (2 Cir. 1965), and would have a serious effect on similar fixture claims of tenants in other condemnations pending in the circuit. After giving the Government opportunity to respond and reviewing its answer, the court ordered reconsideration in banc on the papers already submitted. We disagree with the conclusion of the panel majority that just compensation for trade fixtures of a tenant under a short-term lease can never exceed reproduction cost less depreciation to the date of taking calculated at a rate that would amortize the fixtures "completely over the term of the lease regardless of their normal period of usefulness." On the other hand we do not accept appellees' view that a near certainty of the tenant's being forced to move at the end of his lease because of the landlord's having other plans for the building independent of the condemnation must be disregarded.
Resort to depreciated cost in the evaluation of tenants' fixture claims is simply a means to an end. The end, more readily stated than attained, is that the claimant shall receive "the full and perfect equivalent in money of the property taken" and thereby "be put in as good position pecuniarily as he would have occupied if his property had not been taken." United States v. Miller, 317 U.S. 369, 373, 63 S. Ct. 276, 279, 87 L. Ed. 336 (1943). Normally this objective will be realized by awarding what "it fairly may be believed that a purchaser in fair market conditions would have given," City of New York v. Sage, 239 U.S. 57, 61, 36 S. Ct. 25, 26, 60 L. Ed. 143 (1915) and that sum can be determined with a reasonable approach to accuracy by evidence of fairly contemporaneous sales of comparable property not under condemnation. But since such evidence is unprocurable in the case of trade fixtures of the "middle category," see 306 F.2d at 453, which are being evaluated separately for purposes of fixing just compensation, see Marraro v. State, 12 N.Y.2d 285, 293-296, 239 N.Y.S.2d 105, 110-113, 189 N.E.2d ...