18 Misc. 2d 519 | New York Court of Claims | 1959
Claimant corporation is tlie owner and operator of several canning plants in western New York including one located at the hamlet of Egypt which fronts on State Highway Route 31 abutting it on the southerly side thereof.
The contention herein arises from the appropriation of the other two parcels which are contiguous and which together comprise an irregular quadrangle for the width of eight feet <on the eastern line, 335.76 on the northerly line, 281.06 feet on the southerly line and 45.71 feet in a diagonal on the westerly line, the strip being eight feet wide at its widest point. These two parcels were taken off the front of the claimant’s canning factory property. Prior to the appropriation, the strip of land was enhanced by several maple trees, four of which were of 10 inches in diameter and were in good condition. These were removed during the course of construction. For them the claimant asks the sum of $2,200 as a reasonable market value. The measure of damages is not the separate value of the trees hut the value of the land as enhanced by them. (29 C. J. S., Eminent Domain, § 173; 2 Lewis, Eminent Domain [3d ed.], § 724; Matter of Bensel [Ashokan Reservoir, Section No. 13], 158 App. Div. 41 [1913], affd. 210 N. Y. 623; Ribak v. State of New York, 38 N. Y. S. 2d 869 [1942].)
Subsequently to the appropriation of claimant’s land, the paved portion of Route 31 was increased from 18 to 24 feet, six feet being added on the southerly side of the existing pavement. An additional four feet of shoulder was stabilized with Item 64 asphalt. An additional three feet of shoulder was stabilized but was not surface treated with asphalt. However, this reconstruction to a total width of 13 feet, while widening the pavement and providing a stabilized shoulder, was encompassed entirely within the highway right-of-way line which .■existed prior to the appropriation. No part of the eight-foot width appropriated by Parcels 104 and 105 was utilized for this purpose. It is true, as contended by claimant, that the highway right of way line is now adjacent to the north end of • claimant’s platform scales. It is true that the six feet of pavement plus the four feet of bituminous macadam bring the edge .of the hard surface of the road 10 feet nearer to the wall of
Claimant’s counsel finds further support for his argument in Morton v. State of New York (8 Misc 2d 369 [1957], affd. 8 A D 2d 49). But in that case this court found, and the Appellate Division upheld the finding, that because of the permanent easement, the right of access was denied claimants. Similarly to the Spinner case (supra), in Morton a permanent easement was taken “‘for the purpose of constructing, reconstructing and maintaining thereon, excavations and slopes’” (8 Misc 2d 369, 371). Judge Heller, of this court, included in his award an amount for loss of access. Mr. Justice Reyüstolds, writing for affirmance, said that it would seem that the Mortons found themselves in the same situation as the Spinners, perhaps some day facing a high embankment which could completely block access to their property. Here the situation is quite different. What the State has appropriated here is not an easement, upon which it can at any time enter and dig or build, erect or tear down, maintain or alter at will. Instead it has taken the fee and thus widened its highway right of way just as it did in Stevens v. State of New York (190 Misc. 727 [1947]). The fact
The case of Cities Service Oil Co. v. City of New York (5 N Y 2d 110 [1958]), to which counsel also calls our attention, merely affirms the right of an abutting owner to compensation if access to and from his property from a public street is barred by a municipality.
We have already recited the physical changes which the State has made in front of claimant’s property and stated that no part of the eight-foot strip was utilized for the highway widening. Actually, it was used for underground drainage pipes. The work has been completed. Access remains substantially as it was before construction with little appreciable change of grade, if any. Counsel foresees a future situation similar to that which confronted the fee owner in Raymond v. State of New York (4 A D 2d 62 [1956], affd. 4 A D 2d 961). He fears that at some time the State of New York will change the grade of Route 31 in front of claimant’s property and that, in the absence of statutory authority, there will be no remedy available to claimant. But we cannot speculate on what the State may do in the future and assess damages on the basis of our imaginings. The test is the use to which the parcel taken is put. (South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301 [1903]; County of Erie v. Fridenberg, 221 N. Y. 389 [1917].) For this the claimant is entitled to recover, in addition to the value of the parcel proper, the damages to its remaining property consequent upon the taking. (Smith v. State of New York, 281 App. Div. 1064 [1953].) For such consequential damages
We are unable to adopt this theory of the measure of damages. We do, however, give consideration to the fact the claimant has lost valuable frontage, that access to its plant has been made less convenient and more hazardous, that its operations have been impeded. These factors undoubtedly affect the market value of claimant’s factory adversely. Yet claimant, since the appropriation, has continued to operate its existing facilities in substantially the same manner as it did prior thereto.
During the course of construction a manhole which was part of claimant’s drainage system was removed. This was not replaced. Its absence has caused some difficulties in plant operation. As against claimant’s demand for $71,000, the Attorney-General asks us to find that the only consequential damage sustained by claimant is the loss of this manhole which he asserts can be replaced at a cost of $500 as testified to by a defense witness. The claimant offered no proofs on replacement cost of the manhole. Instead its plant manager testified to the complications resulting from its nonexistence. Claimant uses large quantities of water in its processing of fruits and vegetables and waste materials are carried into the drainage system. At times an accumulation of such waste materials causes a' stoppage in the pipes. The loss of the manhole complicates the relief of such a condition when it occurs. Prompt relief is necessary to avoid suspension of work in the canning factory and the deterioration and loss of raw materials in process. The manager has assigned an auto truck at a rental value of $3.50 per hour and a driver at $1.25 per hour, daily during the canning season, to collect and haul away waste materials. Previously such materials were trapped in the drainage system and the manhole was utilized for access to the pipes where the stoppages were released by the use of implements called “ snakes.” But this is not a claim filed as for a continuing trespass. The measure of damages is not the recurring expense involved in keeping the drain pipes clean. It is, rather, the degree by which the existence of the manhole enhanced the value of the strip of land within which it rested and which
The assessment of damages confronts us with a difficulty often encountered in appropriation claims in this court. The claimant proceeds on one theory which leads to a high figure. It offers no alternative, no other approach to the difference in value of the entire property before and after the taking. The Attorney-General relies on the opinion of an expert witness that the only consequential damage is the loss of the manhole. With respect to the actual value of the two Parcels 104 and 105 the discrepancy is not so great, the claimant’s witness giving a value of $959 plus $2,200 for the trees and the defendant’s witness $500 with no additional amount for the trees. We find the value of these two parcels as enhanced by the trees and by the manhole to be $3,500. For the depreciation in the market value of the entire property as between a willing buyer and a willing seller — it having been noted that the factory is in full force and operation in substantially the same manner as formerly and the manner of its operation having been observed recently by the court at the height of the bean packing season — we award an additional $2,500. Interest is to be added in accordance with statute. Bequests to find have been marked and a formal decision accompanies this opinion.
Judgment is directed accordingly.