19 A.D.2d 582 | N.Y. App. Div. | 1963
Judgment unanimously reversed on the law and facts and a new trial granted, without costs of this appeal to either party. Memorandum: Claimant was awarded $58,500 for the permanent appropriation of some four and one-half acres of land and consequential damage to the remaining property. The entire tract of some 114 acres in the Town of Salina was purchased by claimant in 1953 for $35,000. The de facto appropriation occurred in May, 1954. Claimant’s principal expert placed a value on the land before taking of $535,301 and an after value of $358,776 for a total damage of $176,525. The witness attributed $44,710 of this amount for specific land taken and $131,815 for consequential damage. A large portion of the total acreage was low, swampy land. Claimant’s expert testified that to make the land usable 32.20 acres required 7% feet of fill, 44.81 acres needed 4 feet of fill, 10 acres required no fill and 25 acres were unusable because the cost of fill would exceed their potential value after filling. In fixing consequential damage the expert valued the property at the price it would bring as filled property and deducted the cost of the fill. It may be inferred from the proof that the accomplishment of such a massive filling job, if done