The Taking

The telephone buzzed.  My secretary asked if I had time to meet with a possible new client. I put aside the collection case, seeking ninety dollars owed to a doctor that I was working on, to meet with him.

Two months earlier, March 1965, I had left the largest and most prestigious law firm in Central New Jersey where I had been for three years. It had become time to establish my own practice. I returned home, to Main Street Flemington, ten years after graduating from Flemington High School. I had decided to locate my law practice in the Borough of Flemington, still surrounded by rural Hunterdon County. 

I had taken over the small ground floor office of a lawyer who had recently died of his third heart attack. His was a modest practice. Principally he had some collection cases he was working on for the medical center. He had experienced two heart attacks. After each one members of the local bar had stepped in to complete his pending cases for him, giving fees earned to his wife, but keeping the clients.

He could no longer cllimb stairs. He had rented space on the ground floor of the 8 Main Street building. He had the first ground floor office in town. He was the only person in the building. 8 Main Street was a worn out space that had been a furniture store, 5 & 10, and a shoe repair shop. He occupied the space that had been a shoe repair shop.

I knew the family of the lawyer. His daughter had been a year behind me in high school. The firm I left, had in the prior year, while I was there, taken over what had been a major case for him. He and his client had felt it was a little beyond him. I had worked on the case in the Somerville firm. We defended successfully a doctor from a breach of contract claim. His partners in the medical practice claimed their partner had left to start his own medical practice, contrary to an agreement among them. We established his right to continue based on the partners breach of the agreement.

When I moved into the deceased lawyer’s facility, having paid his widow a modest amount of money for the very used equipment, I undertook to complete cases he had started on behalf of the medical center and its doctors.

The office was small. It consisted of three rooms. My rent was $75 a month. There was an entrance door opening out onto Main Street. The first room contained the desk where his secretary sat.  She continued as my secretary. I paid her the same $75 a week he had paid her. I thought she would be helpful, knowing something of the cases he had worked on and having an idea of the background of other files that became mine as part of taking over his space. There were four chairs in that modest room that served as my waiting and reception area as well as my secretary’s office and our file room. There were two file cabinets located behind her desk and a typewriter next to it.

There was a door directly across the room from the door that opened onto Main Street.  It opened into the second of my three rooms. In that room were two more file cabinets. There was also a small table with a wet process photocopy machine on it. The machine could make one copy at a time by exposing the original to a bright light, dipping a copy sheet into a liquid, and pulling the dipped sheet and a fresh sheet of paper together through a devise that pressed the two sheets together and squeezed the chemical out of the dipped sheet. The room also contained four chairs surrounding the table.  This was the office conference room.  There was a bookshelf containing a set of statutes books and a few casebooks. There were one or two old law books of a nondescript nature.  That room had a door facing the one used to enter. 

That door opened into what was my private office. It was the smallest room of the three. It contained a desk, an old chair for me to sit in, a new dictating machine I purchased, a telephone, and two extra chairs that could be occupied by anyone who might meet with me in my private room. It had a window looking out into the one car wide alley next to the building.

I walked out into the conference room and met the possible new client. He was not particularly striking in his appearance, although he had an executive air about him despite his informal country dress.  I was 28 years old. He seemed old to me at the time — he was probably all of 50 or 55 or maybe 60 years old. 

He told me he owned a single engine airplane he kept at the Sky Manor airport. He had spent money fixing a hangar he rented to house his plane. He flew as a weekend recreation.

He was hoping to be able to continue to use the airport, but he explained that if a power line that was proposed to pass the airport was constructed, the airport would be shut down. In that event he’d have to find another place, much less convenient to him, to park and keep his airplane. He would lose the money he spent on his hanger.

He told me the owner of the airport had previously run an auto repair facility and sold used cars. The owner, George, was a fine mechanic, a very fine pilot, and was qualified as an instructor. George owned and was running the airport with his wife. My visitor and the owner had become friends.

The airport facility itself consisted of a driveway into the airport that crossed the grass strip runway, with the home for the airport operator on one side of the drive, and a small series of hangars backed up to a modest restaurant on the other. The restaurant featured a picture window overlooking the runway where planes took off and landed. There was also a swimming pool the owner proposed to close and a small changing room outside the window. 

The power company had already approached the owner and offered to pay him $3,000.00 to cross a very small corner of the airport property.  It was obvious to the owner that if the power company crossed his property with a power line, the property would become useless as an airport. These power lines were proposed high voltage, high tension, power lines to be constructed on a metal lattice tower. The lines would be located right in the glide path to the grass landing strip of the airport itself.

The owner had made some inquiries and learned that if a corner of his property was taken, the power company, taking even a small part of the property, would not only have to pay him for the value of that small area of property, but they would have to pay him for the damage done to the balance of the property. He had just paid a premium for the property because of the airport use allowed as part of the property.

The owner had essentially no financial resources to spend on a lawsuit. He had exahusted his credit buying the property and equipment. He was looking for a lawyer with a background of competence and capability to take on the power company, with the hope that the case could be handled on a contingent fee basis.  A contingent fee is a basis on which a fee would be paid out of the money collected from the power company.  I indicated I was interested, and happy to meet with the gentleman, and the airport owner, and we would talk about the case. During our meeting we would look at maps that had been presented and discuss the possibilities. 

I learned in that next meeting that my visitor had already approached the two Law Firms that were considered the leading and major Law Firms in town. Neither of them were willing to work on a contingent fee basis.  One of them wanted a $5,000.00 deposit as a retainer against services to be performed. They also said they did not think they could win the case, but for that fee they would try. The other firm did not want to take on a case against the power company on any basis. 

To put things in perspective, $5,000 would have paid 67 months, or more than five years, of my rent. When I had left the Law Firm I had previously been paid $7,500.00 a year and had been promised $8,500.00 a year if I continued another year.  $5,000.00 was thus a very substantial retainer at the time.  The airport owner had paid something in the neighborhood of a hundred to a hundred and fifty thousand dollars to buy the entire airport property and planes and other equipment to be used in the repair and maintenance of airplanes.

As I looked into the case, I learned that the power company had already been engaged in litigation with a group of Hunterdon County property owners in the north end of the county.  This was the area in the county where the wealthiest people in the county, and perhaps some of the wealthiest people in the State, had established their estate properties.  They had hired a lawyer from one of the biggest and most renowned firms in the state to represent their interests in dealing with the power company.  The lawyer they hired, was a candidate to be President of the American Bar Association. His firm had a blue ribbon list of clients. 

His clients, in dealing with the power company, wanted to prevent the power line from being run through the valley above ground because they felt it would devalue their property by interfering with their pastoral view.  I learned that he had been unable to obtain an injunction against the power line. The power company had satisfied a Judge that the power line was needed by the citizens of New Jersey and New York. They had satisfied a Judge that it was not only impractical, but impossible at the state of then technology to put a line carrying such high voltage underground. 

My first job, after signing a Letter of Agreement that I would represent the airport and its owners, was to do some research on the prior case and some additional research on what the law in New Jersey provided in this fact situation.  In the process of my research, I learned that the power company had relocated its line from its original course. They had put a jog in the line to avoid the taking of much of the airport property.  By moving the line slightly, and turning it slightly, they avoided taking any of the physical property of the airport. The line would still be located in such a way as to block the glide path of the small planes that use the airport and would thus prevent the use of primary runway. 

The airport did not consist of enough property to put a runway in from another direction.  To do so would be impractical.  The wind direction in that area, an important factor in locating a runway, would involve a strong cross wind on a regular basis for small planes landing on a dirt and grass runway if it were to be perpendicular to the existing one.

We had no computer legal research at the time. I drove to Trenton and spent the day and the next in the state library. After considerable research I realized that there were only two cases that I could find in the country where a Court system had provided that putting an obstruction in a glide path would constitute the taking of the property in our client’s case.  There were very few cases that dealt with the concept of property rights above ground.  None in Jew Jersey.

There was one case in Indiana. It involved a cooling tower in an industrial facility, that was interesting. I felt it might be useful in persuading a Judge.  I also inquired of the State Department of Transportation and learned that their Aviation Division would close the airport if this power line was constructed, as already not only proposed, but approved by the Public Utility Commission of the State.

I proceeded to prepare the necessary paperwork to approach the Chancery Judge in our vicinage to ask him to enjoin the power company from continuing the construction of the power line.  The power company had already expended twenty-six million dollars to bring the power line to a point less than a quarter of a mile from my client’s property.  And the power company had already made arrangements to use property, or had already begun the process of condemning property, along the route that had been approved by the Utility Commission.  It seemed that it was unlikely that they would be willing to, or even as a practical matter be able to, change the course of the power line.

Nevertheless, when I presented the Judge with our pleadings, including the affidavit of my client, the affidavits I prepared for some of the people who used the airport, and a letter from the Department of Transportation, Aviation Division, indicating that the airport would be closed if the power line was to be constructed, I was able to obtain an injunction against the power company proceeding with the construction of their power line. 

This activity, which occurred in mid 1967, made the news.  Not only in all the local weekly papers, but in the state-wide daily papers.  It was big stuff that a little airport was fighting the big power company.  It was a true David and Goliath kind of story for the press. 

An interesting side factor; at this time lawyers were not allowed to advertise.  It was not until 1968, 3 years after I opened my office, that the United States Supreme Court declared that it was a matter of freedom of speech that lawyers be allowed to advertise, if they did so in a dignified way.  So here I was starting to practice without an ability to tell people, beyond a simple mailing of an announcement to known friends, that I existed as a lawyer. I found myself on the front page of all of the newspapers in the area for having stopped the power company in its tracks. 

Of course the power company, and its lawyers, were not going to take this lying down. So we found ourselves, inside of two weeks, back in front of the Judge who stopped the building of the power line.  I was sitting at one of the two tables in the Courtroom facing the Judge and listening to the arguments of the lawyers for the power company.  There were four lawyers sitting at the other table.  One of them was an In-House lawyer for the power company who I did not know, and three from firms that that were top names and firms in the State. They represented investors in the power line. 

I heard them describe what they had gone through to get approvals.  How they had gotten approvals along the planned line from the Public Utility Commission.  I heard them talk about how they had acquired all the property rights except those that my client had, and I heard them talk about how my client stood in the way of providing electricity to thousands and thousands of citizens in large towns. I heard about all of the economic damage that would be experienced by businesses and common citizens if this power line could not be allowed to deliver power to our market, and to bigger and more important markets. I heard what had been successful in the prior case they had won.  My case was different. My client was not interest in his view, he and his wife would lose their business not a "pastoral view".

When my turn came, I told the Judge that I was not arguing against their position that the power was important and that it needed to be delivered to lots of people.  But if they were going to do it in such a way as to put my client out of business, they had in fact condemned his total property. I talked about how the Constitution provided that you could not take a citizen’s property without compensation. I talked about how blocking the glide path with these power lines was taking my client’s property. 

At the end of the day, the Judge decided that he had to allow the power line to continue. He suggested to the power company that they meet with my client and me to make arrangements to satisfy us. He said that the case was not over with dissolving the injunction.  He said he would not stand in the way of construction continuing, but that they would have to consider making a reasonable offer to us. Of course, the strategy of the injunction was the leverage that put us in a position to demand more than the $3,000.00 that the power company had originally offered my client. 

I immediately filed a Notice of Appeal, and I requested a stay on dissolving the injunction relating to this decision, to the Appellate Division, the next level of judicial review in the State of New Jersey.

The power company managed to push the Appellate Division to consider this case earlier than we might have expected.  Under the circumstances we found ourselves sitting in front of a three Judge panel of the Appellate Division in Newark.  In fact we flew to Newark in one of my client’s small twin-engine airplanes.  That gave us an opportunity to view the property in the area from the air. It gave us another opportunity too.

Again, I found myself sitting at a table with just my client next to me and at the other table this time were six lawyers, all from large Newark offices representing the power company and its various investors. All big names.

During this hearing, the burden was on me to have the injunction reinstated.  I argued all the arguments I had before. I said we had an airplane at Newark Airport and invited the three sitting Judges to fly with my client to our airport and to approach it, now with a power tower constructed within 75 feet of where the wing tip of the plane would be, as it approached the runway.  No surprise that there were no takers among the Judges sitting on the Appeal Bench hearing our case.

Their decision was made on the spot.  They agreed with the trial level Judge who had originally given us the injunction, and then dissolved it, based on the arguments of the power company about the money they had spent, the public need to continue the line and the need to complete construction of the power line.

It was now up to me to file a motion with the Supreme Court, asking them to consider this novel concept relating to the taking of property by running a power line through the area in such a way as to block a glide path into the runway of a small airport. The case was of statewide interest and would affect all small airports and all power lines in the state.

Three days later I was sitting in my office, working on my motion and the argument that I would make to the Supreme Court if my motion for a hearing was granted.  I felt that this was the kind of novel question, and issue of wide impact, that they would consider. 

My telephone rang.  It was a senior lawyer in the County that I was acquainted with. He told me that he had been reading about the case in the newspaper.  He thought it might be useful for me to know that he represented the landowners that owned the farm on the opposite end of my client’s runway from the proposed power lines.

He told me that an individual had stopped a day ago to see his client. The man and had paid his client $5,000.00 for an option to buy the farm for $100,000.00.  He said he had no idea as to whether it was connected with our case, but he provided me with the name of the man who had taken the option, in his own name, and hoped that his information would be useful.

I called the power company.  When I got to their switchboard I asked for the man who held the option by name. I was told he was out to lunch.

I got in touch with my client and gave him what I considered good news.  It appeared that the power company was getting ready to make a deal to work with us in solving my client’s dilemma of the blocked glide path.

Sure enough, a day or two later, I got a call from one of the attorneys representing the power company.  They asked me if we were willing to consider settlement of the case.  I told them we were.  They invited my client and me to come to Newark to meet with their client, the Public Service Company to discuss the possibility of settlement.  The caller and I discussed some of the details and arranged a time.

George and I went to Newark again. This time to the office of the power company.  We were ushered into a small room. A representative of the power company came in to see us and offered us a modest sum of money, substantially more than the $3,000.00, but not nearly enough to represent the difference between the value of my client’s land as an airport and its value as vacant land next to a big power line. The representative left for us to discuss his offer.

My client had been in the used car business. He wrote a note on a piece of paper and said we should not be talking out loud.  He thought perhaps the room was bugged. He did not want our adversaries to hear our discussion.  So for the first and only time in my life, I conducted a discussion with a client by passing notes back and forth under the edge of a table. 

We agreed that the sum offered was not sufficient and reported that to the lawyer representing the power company.  He then came back in and said they had another offer that we might consider and that was they would sell the farm that was at the far end of our runway from where they were building their power line, to my client, for the rather modest sum of $10,000.00.  We were left to consider that proposal. 

My client and I again passed notes back and forth, with his conclusion being that this was a substantially better offer.  The power line, as long as it could be properly lit at night, so as not to be a hazard to small airplanes, would actually serve as a beacon to the airport. 

We agreed to proceed on the basis that the power company work out with the State to put large red balls on the power line and that they put lighted beacons on the towers on each side of the lines that would be in the glide path of the old runway.  We now would be able to extend the runway, abandoning the section close to the power lines, but having a longer and paved runway than we had in the past.  We also conditioned the settlement on the Department of Transportation agreeing that under this arrangement they would not close down the airport. 

The attorney for the power company came back and agreed that the power company would do so, and that they would help us work with the State to assure us that the airport can continue operating. 

The airport lives for future generations to learn to fly and to enjoy.

We were next ushered into the Boardroom where we found one of the longest Board tables I have ever seen. It was surrounded by a whole group of what looked to us like old men, who were all in there to hear that the settlement had been worked out.  They passed a resolution confirming the settlement and the case was disposed of.

We went back to the airport and celebrated by having dinner.  The news was quickly dispersed to the newspapers by the power company that they would be able to continue, that the case had been settled and that the power line would be built and service would be provided to the people who were expecting the power. 

There was little mention made of the basis of the settlement, but it was made clear that the settlement was satisfactory to the airport owner. 

The story concludes with the newspaper sending a photographer out to take a picture of my client and I shaking hands next to his parked airplane with the partially constructed tower in the background. 

George and I were invited to meet with the Governor, and the secretary of transportation, airport division, to have our photo taken.

Neither the airport owner nor I could have been more delighted.  We had also negotiated that George would defer payment for one year for the $10,000.00 he was to pay for the land.  He managed to re-finance the property, including the new farm, was able to pay me $500.00 more than my annual salary would have been if I had stayed with the old Law Firm, and I got publicity that was considered legitimate and ethical as a news report that was a major contributor at the launching of my new young law practice.