29 A.D. 286 | N.Y. App. Div. | 1898
This is an appeal from an order made at Special Term confirming the report of the commissioners of estimate and assessment in the
The general principle upon which the award is made seems to be correct. The city is not bound to make greater compensation for all the combined interests in the land taken than the full value of the fee. It must be regarded as definitely settled that “ the proper way of assessing the damages, where two or more persons have distinct interests or estates ” in any parcel of ground required for a public improvement, is to ascertain first the damage to the fee as if it were owned entire and unincumbered by one person, and then to
The parcel of land taken is only a part of that which was under lease from Lawrence to the Wrights. It is provided by section 982 of the Consolidation Act (Chap. 410, Laws of 1882) that when a part only of leased premises is taken for a public improvement, all contracts and engagements respecting the same shall, after confirmation of the report of the commissioners, “ cease, determíne and be absolutely discharged as to the part thereof so taken, but shall remain valid and obligatory as to the residue thereof; and the rents, considerations and payment reserved or payable, and to be paid for or in respect to the same, shall be so apportioned as that the part thereof justly and equitably payable, or that ought to be paid for such said residue thereof and no more, shall be determined or paid or recoverable for or in respect of the same.” The precise point arising on this provision of the statute is whether the tenants’ compensation for the destruction of their term in the part of the leased premises taken is confined only to an allowance of their damages in the apportionment of rent, or whether that apportionment is merely to determine what shall be paid during the preserved term for the part of the premises not taken, so that the tenants may be permitted to recover such damages as may have been sustained by reason of special losses arising from the destruction of the term as to the part of the land taken for the improvement.
The representatives of the lessor insist upon the proposition that the whole compensation is involved in the apportionment of the rent, and, upon-that theory, that they are entitled to the whole award made by the commissioners in this case. All that is advanced by way of authority for the proposition of the lessor’s representatives is a dictum in the case of Phyfe v. Eimer (45 N. Y. 102), but that dictum is not supported by authority, and is contrary to any just or
It is impossible to formulate any general rule to cover each case by a precise definition of what is to be allowed, but I think it is quite clear that the same rule applies with respect to damage between reversioner and the holder of a term for years, whether the land is wholly taken or whether it is only partially taken, and that just and proper compensation to a tenant cannot always be made in the apportionment of the rent under the section of the- statute now under consideration. This case presents precisely that feature. The property is so situated, the lessees’ relation to it is such, the uses to which it has been put are such, and the value of the term to the lessees is such that they cannot be compensated for the taking of their interest in the land simply by an ascertainment of how much rent .shall be paid in the future to the lessor for the property reserved from the imnrovement, and as to which the covenants of the lease •continue.
It is further urged by the learned counsel for the lessors’ representatives that the statute terminates all the covenants of the lease in such a way as to deprive the tenants of any other benefit than that of an apportionment of the rent, and that the terms of the
If I am right in the foregoing view of the case, it follows that the lessees were entitled to some award of substantial damages not included in the apportionment of rent.
Upon an examination of the whole evidence I am not satisfied that they were entitled to any more than the commissioners allowed. They are not entitled as against the lessor to everything in the way of damage they may sustain, irrespective of the detriment the lessor may suffer by the taking of the property and the destruction of the term. The entire value of the lessees’ term is not to be carved out so that the whole burden will come exclusively upon the landlord. The latter it is true gets compensation for the property taken, but there may be resulting losses that are not covered by the actual market value of the land condemned. If such a rule were to be applied, it is quite evident that, upon long leases, the whole value of the fee might be absorbed for the benefit of the tenant. A fair and equitable adjustment is to be made, based upon all the facts connected with the situation of the property, its uses and its value, and I do not perceive that the commissioners have committed any error in their adjustment of the rights of the parties in this particular case. Here was a lease which imposed upon the lessees various duties and obligations of the payment, in addition to rent, of taxes and water rents, and they were to be at charges for repairs and interest upon investment. In the exercise of their best judgment, the commissioners found that the tenants were entitled to a certain sum as damages. With their finding I see no reason to interfere, unless the whole loss occasioned by the improvement is to be charged against the owners of the fee, which certainly cannot be the rule.
I think the order appealed from should be affirmed, without costs.
Van Brunt, P. J., O'Brien and McLaughlin, J J., concurred.
Order affirmed, without costs.