179 A.D. 245 | N.Y. App. Div. | 1917
For many years a two-track railway, laid on the railroad corporation’s land, crossed, at grade, Eighty-sixth street, a legally opened and graded but otherwise unimproved thoroughfare in the present borough of Brooklyn. The street is 100 feet in width. The city of New York included that railway in the development of a rapid transit system. By a group of contracts, the details of which would unnecessarily extend this opinion, the plaintiff New York Consolidated Railroad Company assumed the duty of laying two additional parallel tracks; depressing the roadbed to eliminate grade crossings, and building embankments, stations and platforms at and near Eighty-sixth street. The entire width of Eighty-sixth street was utilized for this purpose, and, in addition, 23 square
“ Beginning at a point on the southwesterly side of 86th Street distant seven and five-tenths (7.5) feet northwesterly from the westerly right of way line of the New York and Sea Beach Railway Company (now New York Consolidated Railroad Company), measured along said southwesterly side of 86th Street; running thence northwesterly along said southwesterly side of 86th Street seven and sixty-nine one thousandths(7.069) feet; thence southerly parallel with the said westerly right of way fine seven and eight hundred and fifty-four one thousandths (7.854) feet; thence north sixty (60) degrees forty-six (46) minutes forty-seven (47) seconds West five and five hundred and fifty-nine one thousandths (5.559) feet to the point or place of beginning, together with all the right, title and interest of the owner of, in and to 86th Street in front of the above-described parcel of real estate to the centre line thereof.
“ Together with the right to enter upon and disturb any lands adjacent to said last described parcel of real estate for a distance of two feet westerly from the most westerly fine of the above described parcel of real estate for a period of not exceeding seventeen (17) months from the date of entry thereof, so as to permanently install a retaining wall and other structures upon the hereinbefore described parcel of real estate.
“ Provided, however, that the petitioner restores said adjacent lands to the condition that the same are now in with the exception of the existence of said retaining wall, platforms, coverings, stairways, columns, foundations, conduits and sewers.”
The commission awarded the respondent $2,260.82. It determined the value of the land actually taken to be $9.20. The remainder of the award, $2,251.62, is awarded for consequential damage. From the order confirming the award the appeal is taken.
By the construction Eighty-sixth street was carried over
The land specified in the petition was in the triangular piece first described. There was no evidence that respondent Walsh’s land was devoted to any special use. The rule of damage in an ordinary situation is settled. The owner should receive, as compensation, the value of the land taken, plus the damage to the part remaining by reason of the severance and through the use to which the property taken is to be
The petition precisely delimited the property and rights the plaintiffs sought to acquire. The power of the commissioners is confined to ascertaining and determining the compensation which should justly be made for that property and those rights. (Code Civ. Proc. § 3370; Bell Telephone Co. v. Parker, 187 N. Y. 299.) If any property rights of respondent Walsh have been tortiously or otherwise unlawfully invaded by the acts done, he has an appropriate remedy, and claims based thereon may not be adjusted in this purely statutory proceeding.
There is a question presented on an appeal taken by the legal representative of a commissioner who died pending the proceeding and before the ascertainment and determination
The order should be modified by striking therefrom all provisions confirming the award to respondent Walsh, and further modified by striking out the provision which denies the application of the executrix of the deceased commissioner for fees, and by inserting the following provision:
Ordered that the petitioners pay to the executrix of Edward S. Fowler, deceased, for fees for his services in the above-entitled proceeding, the sum of $230; and as modified affirmed, with costs.
Thomas, Mills and Rich, JJ., concurred.
Order modified in accordance with opinion and as modified affirmed, with costs. Order to be settled before Stapleton, J.