99 N.Y.S. 222 | N.Y. App. Div. | 1906
The appellants contend upon this appeal that the award made by the commissioners for damages to the easements, upon their- several properties upon Eul-ton street, by reason of the construction and operation of the plaintiffs railroad, are inadequate, and that the commissioners committed errors of law which entitle them to a reversal of the order. Under'condemnation proceedings the commissioners are authorized to and do view the premises involved in their investigation into the damages sustained, and the rule is well established, requiring the citation of no authorities, that in the ' absence of obvious error in the application of the law, the award of commissioners, approved by the court at Special Term, will not be disturbed. They are not bound down by any narrow technical rules of evidence; they may seek information wherever it is to be found, and in the last analysis it is the judgment of the commissioners which is to prevail, provided they have acted within the law. • Practically the only question involved in this appeal which is of any importance, in view of the rules governing such matters, is whether the measure of damages adopted is the correct one.
In this case we are of opinion that the commissioners were justi
It is claimed that this award is not in harmony with the judgment of condemnation, in that the latter directed that the award should cover all of the elements above mentioned, but we are of opinion that the commissioners were not bound by that judgment to include in their award that which the law does not recognize as an element of damage in cases of this character, and that the true rule is as stated in Matter of Brooklyn Union El. R. R. Co. (95 App. Div. 108, 110), that the basis of the appraisement “is generally the difference in value of the abutting premises actual and prospective before and after the construction of the road in so far as the same is due to such construction and to the operation of
Of tíbúrse/wJiéfe the petitioners actually take a portion of the real estate', a different 'rule/ of damages is' "brought' iiito play. " In such a case there is the duty hot only of" paying just compensation , for the" part' which is physically taken, but justice"faquires that" , there shall.be ail awáf-d for the damages which -thé" remaining portion. of the premises shall suffer, and"tliis includes all of the elements incident to the ¿obstruction, and operation of the railroad in the vicinity-o.f the" rediáiítíihg1 jjdrtion of ; the "premises.:" But -the case" now before us is not's-ucli a ¿asé. ' Here the i'injuiry 'is simply 'as 'td the'value of the premisesj with unobstructed easements of light, ail" and access, and the value of; 'the' saíne" with' the road-"Constructed and in operation/ 'encroaching upon these easements, ill so far as such values are affected’ by such construction and. operation- of "the road. ", .' ' '' ' - . ’ '
Without attempting tb analyze the various authorities bearing upon this question, it is stifficierit to!say' that we do not think 'the commissioners have éfred iú tlie application of the rule of damages in this case, and we do not find any' eir'or of'importance under therulés recognized and applied in ‘proceedings' of this character. '
The order appealed fiom" should be affirmed, with costs.
Hirschberg, P. J., Jenks, Hooker and, Miller, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.