Lenhart v. State, 75 A.D. 162

Lenhart v. State

75 A.D. 162 | N.Y. App. Div. | 1902

Kellogg, J.

The claimant was the owner of a farm of forty-seven acres fronting about five hundred feet on' a highway. Near one end of this frontage was his dwelling house, and near the other end was his *163barn. The State, in excavating its canal, dumped the material consisting of sandstone and hardpan upon the space between the house and barn, covering over about an acre of land and raising three conical heaps from twenty to thirty feet high. The land so taken was theretofore used as a garden and for raising grain. Back of the highway and about two hundred feet from it rims a ditch some twenty feet or more in width and five feet deep, and the farm extends back across the ditch. The available part of the farm for buildings is the street frontage in part covered by this dumpage. The State since the filing of this claim for damages has served notice that it appropriates to its own use this land covered by the material taken from the canal, being about one acre; with irregular boundaries. The damages for temporary occupation to the time of appropriating the title is fixed by the Court of Claims at $100. There is some testimony in the case from which this can be supported. The damage to the plaintiff’s farm by reason of carving out this piece and maintaining these heaps of stone, sand and hardpan for some twenty and some thirty feet high on the highway front between plaintiff’s dwelling house and barn is to be measured by finding the value of the farm before and after the deposit and taking by the State. The plaintiff and two other competent witnesses gave evidence on that subject. The State offered no evidence. All the witnesses agree in fixing the difference in salable or market value to be about thirty dollars per acre for the forty-seven acres.

In reviewing cases brought to this court from the trial courts on questions of fact we must recognize the rules of evidence. We must accept the facts established by witnesses, and when it is apparent that in the court below an award or verdict has been made up without proper regard to the proof, it is the duty of this court to. reverse. The learned Court of Claims in this case seems to have, overlooked the proof or to have ignored it. What that court substituted in lieu of the testimony of the witnesses we are unable to say..

The judgment of the Court of Claims is reversed, with costs to. plaintiff, and a new trial is granted.

All concurred.

Judgment reversed on law and facts, with costs to the appellant, and new trial granted.