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UNITED STATES v. 52.67 ACRES OF LAND

April 11, 1957

UNITED STATES OF AMERICA, PLAINTIFF,
v.
52.67 ACRES OF LAND, MORE OR LESS, IN ST. CLAIR COUNTY, STATE OF ILLINOIS, AND RUSSELL H. CLASSEN ET AL., AND UNKNOWN OWNERS, DEFENDANTS.



The opinion of the court was delivered by: Juergens, District Judge.

The United States, at the request of the Secretary of the Air Force, filed an action, civil in nature, for the taking of property under power of eminent domain and for the ascertainment of award of just compensation to the owners and parties in interest of the real estate described in the complaint.

The defendants filed their answer denying the material allegations of the complaint. They also filed their cross-complaint consisting of two counts. In Count I the defendants allege that the land sought to be taken has become best suited for the purpose for which it is now being used, namely, that of a Radar Station of the United States Air Force, and they ask that just damages be awarded to compensate them for the cost of building a serviceable road and drainage ditches including culverts over certain lands therein described and, secondly, that damages be awarded to them to compensate them for the damages they will sustain by the curtailing of farming operations on the two tracts which have been necessarily separated because of the taking by the government of the land described in the complaint.

In Count II the defendants pray just compensation on account of the taking of the improvements now existing on the land placed there by the United States and that were in existence on the land on the date that the United States did make their declaration of taking and give notice of condemnation of the land described.

The United States filed its motion to strike from the answer and cross-complaint of the defendant landowners "the following portions of said answer for the reasons stated." The government has not set up any portions of the answer which it thought should be stricken but did set up certain portions of the cross-complaint which it moved to strike. Therefore, the Court is assuming that the motion to strike is directed solely against the counter-complaint. The United States has moved to strike from the counter-claim the first paragraph on Page 3 of the cross-complaint for the reason that said paragraph is immaterial in that it is an erroneous assumption as to what is the law and that it is a pleading of evidence.

The motion also asks that Paragraphs 2 and 4 of Count II of said cross-complaint be stricken for the reason that they are immaterial in that they raise erroneous issues of law and are a pleading of evidence.

The parties in their oral argument before the Court have indicated their desire for the Court to rule as to what evidence will be admissible on the question of the "highest and best use" for which the premises are adaptable in order to fix just compensation for the land taken.

To properly decide the issues raised by the government's motion to strike, it is necessary to consider paragraph numbered 5 of the lease which was entered into between the parties to this condemnation suit on July 23, 1949, wherein the government leased for military purposes the real estate described in said lease for a term beginning August 1, 1949, through June 30, 1950, and from year to year thereafter without further notice except as set forth in said lease which is not material for the issues herein involved. It also provided that in no event should the lease extend beyond June 30, 1964. Paragraph numbered 5 of the lease provides as follows:

    "The government shall have the right, during the
  existence of this lease, to attach fixtures, and
  erect structures or signs, in or upon the premises
  hereby leased, which fixtures and structures, or
  signs, so placed in, upon, or attached to said
  premises shall be and remain the property of the
  government and may be removed or otherwise disposed
  of by the government."

The defendants, in their cross-complaint, ask compensation for the improvements so placed upon said land during the existence of the lease, which improvements were to be and remain the property of the government and which could be removed or otherwise disposed of by the government.

In 6 A.L.R.2d 323, it is stated as follows:

    "While there are differences of opinion as to the
  precise meaning of the term `fixture' it is generally
  used in reference to some originally personal chattel
  which has been actually or constructively affixed
  either to the soil itself or to some structure
  legally a part of the soil. It implies something
  having possible existence apart from realty, but
  which may by annexation be assimilated into
  realty * * * and as chattel property brought in and
  upon and annexed to real property, but which, while
  retaining its separate identity, becomes realty, and
  may under such circumstances become personalty
  again."

In 36 C.J.S., Fixtures, § 1, p. 889, the following appears:

    "The term `fixture' is applied to articles of the
  nature of personal property which have been affixed
  to land and which ...

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