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
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 ...