112 N.Y.S. 343 | N.Y. Sup. Ct. | 1908
By agreement this proceeding is to be treated as a motion to confirm the report of commissioners in awarding damages to the defendant in a proceeding to condemn a portion of her premises for the purposes of the plaintiff’s railroad. The facts are very simple. The plaintiff has condemned and appropriated to its own use about one-third of an acre of the defendant’s farm extending along the right of way of the Erie Railroad Company near Olean. It appears from the record that this land is necessary to support the earthwork which it has been found necessary to construct to support two tracks of the plaintiff’s railroad, the rails of which are to be laid upon the right of way of the Erie Railroad Company • and the question presented is the measure of damages to be allowed to the defendant. The plaintiff concedes that the defendant is entitled to the full value of the property actually taken, but contends that, as the tracks to be constructed are to be upon the lands of the Erie Railroad Company, the latter is not to be compensated for any consequential damages; that the rule is to be applied which prevails in those cases where no lands of the party are actually taken, the damages resulting solely from the proximity of the public work. It is undoubtedly true that damages inflicted upon abutting owners in the performance of a public work, reasonably and properly conducted, are regarded as damnum absque injuria (Bates v. Holbrook, 171 N. Y. 460, 469-470), but this is not the case of an abutting owner. The plaintiff in this action is not the owner — so far as this record shows — of the right of way on which it is proposed to lay these two lines of track. It is necessary, it appears, to take the property of the defendant for the purpose of supporting the earthwork necessary to the construction of the railroad tracks upon the right of way of the Erie Railroad Company. It has no right to
The report of the commissioners should be confirmed, with costs.
Beport confirmed, with costs.