32 N.Y.S. 891 | N.Y. Sup. Ct. | 1895
This proceeding was instituted in 1891, by the commissioners of public works of the city of New York, to acquire certain real estate in the town of Carmel, in Putnam county, for the maintenance, preservation, and increase of the supply of pure and wholesome water for the city. It related originally chiefly to the fee of the land under water constituting the bed of Lake Gilead; but it was also designed to extinguish any adverse claims which might exist in reference to a number of other pieces of property in Putnam and Westchester counties, which the municipal authorities of New York had previously attempted to acquire, for like purposes. The matter was subsequently extended by stipulation so as to refer to the same commissioners the question of the compensation to be made to the same claimants for an undivided third part of the mines and minerals in certain lands in the town of Southeast, in Putnam county, which the city likewise sought to acquire. The commissioners awarded the claimants $4,200 for the fee of Lake Gilead, and merely a nominal sum for the mines and minerals. The claimants now appeal from the order of the special term confirming the report of the commissioners, and also from an order denying a motion to set aside the report, on the ground that the commissioners had not taken the statutory oath, and because two of the commissioners were neither residents of the county where the property of the claimants was situated, nor residents of some adjoining county.
The principal question presented by the appeal from the order confirming the report is whether the commissioners did not adopt an erroneous measure of damages, in excluding from consideration, as an element in the market value of the property to be taken, the existence of any demand for such property on the part of the city of New York. The record plainly shows that they proceeded upon the theory that the existence of any such demand could not be considered as an element of market value. So far as the rule which they followed was merely a decision that the desirability of the particular property to the city in view of its necessities was not the legal measure of damages, it was correct. The commissioners went much further than this, however, and practically held that the availability of the property for use in connection with the water supply of New York City could not be taken into account by them in determining what was the fair market value of the premises. In so doing, it seems to me, they disregarded the great weight of authority as to the proper measure of compensation in cases of this .kind.
A question similar to that before us arose in the case of Trustees v. Dennett, 5 Thomp. & C. 217, which was decided by the general term of this department more than 20 years ago. It was a proceeding to acquire an interest in a pond, from which to supply the village of College Point with water. The owners desired to prove that the pond possessed a value as a source of water supply to cities, and sought to show that there was only one other pond available for like purposes within an area of six miles. They were not permitted to do this, and the court held that the commissioners
This conclusion renders it unnecessary to pass upon the objections to the form of oath, and to the residence of two of the commissioners, except so far as some suggestion from the general term may be useful upon the new appraisal which must be had. In my opinion, the omission of the word “faithfully” from the constitutional oath which the statute required the commissioners to take was a material omission, sufficient to invalidate the proceeding, unless the parties can be held to have waived the objection by going on without calling attention to the defect until the report was made. Merritt v. Village of Port Chester, 71 N. Y. 309.
As to the nonresidence of two of the commissioners, that was a matter of which the claimants had notice bv the terms of the order appointing them. It did not affect the jurisdiction, and the objection now comes too late, having clearly been waived by the conduct of the claimants.
Order confirming report of commissioners reversed, and report set aside with $10 costs and disbursements, and a new hearing directed to be had before other commissioners.