175 A.D. 264 | N.Y. App. Div. | 1916
This is an appeal by the State from an award of $3,000, with interest from January 10, 1912, made by the former Board of Claims in favor of the claimant above named, arising out of the appropriation by the State of property for barge canal purposes.
The claimant was organized for the purpose of constructing and operating an electric surface railroad between Syracuse,
By reason of such appropriations the claimant was compelled to obtain the electric current for the operation of its railroad from the station of said power company at Solvay, N. Y., from which place the current was transmitted to Lakeland where it was reduced and applied as theretofore. Also by reason of such appropriations the claimant’s transmission line between said substation and claimant’s tower, situated upon the G-roup parcel adjoining the Thome property on the south, a distance of 1,225 feet, became useless, and claimant, soon after said appropriations were made, abandoned and dismantled the same, and proceeded to acquire a new right of way about one mile and three-quarters in length, extending from said tower easterly across the Seneca river, and thence northerly connecting with claimant’s existing line at a point about one mile north of said intervening space. The claimant filed its claim May 31, 1910, asking an award of $3,000, with interest thereon from June 1, 1908. The difference in value of the right of way and of the 1,225 feet of transmission line at the time of, and subsequent to the attempted appropriation, was fixed by the Board of Claims at $559.43, and this conclusion is fairly supported by the evidence. The cost to claimant of constructing such new line over and above what would have been the cost to claimant of constructing a connecting line over said intervening space, had the claimant been allowed to carry out its original intention, was fixed by the Board of Claims at $2,511.88, and is also fairly supported by the evidence.
On January 10, 1912, the State again took proceedings to appropriate the original Thorne property. On that day it filed in the office of the Superintendent of Public Works two maps, one of the portion of the property owned by said Thorne on June 1, 1908, and the other of the portion owned by claimant on that date, and caused to be served upon claimant January 12,
We think, however, that the Board of Claims was in error in awarding claimant the cost of constructing the new line.' As stated, the claimant had no right of way across, and in fact no pecuniary interest whatever in said intervening properties. Without being possessed of such right of way the claimant’s only recourse upon the appropriation by the State of said intervening properties was to build this new line. The only charge the claimant can make against the State is that by reason of its appropriation of these intervening properties the State frustrated an intention upon the part of claimant to some time in the near future acquire a right of way and construct a connecting transmission line across those properties. This action upon the part of the State did not entitle claimant'to an award of damages against the State. Neither was the necessity for the construction of the new line created by the mere appropriation of the Thorne property nor of the whole or any part of claimant’s 1,225 feet of transmission line. This necessity would have existed because of the State’s appropriation of said inter
These views lead to the conclusion that the determination of the Board of Claims should be modified by reducing the amount awarded to $559.43, with interest thereon from June 1, 1908, and as so modified affirmed.
Determination modified by reducing the amount awarded to $559.43, with interest from June 1, 1908, and as so modified unanimously affirmed. Findings inconsistent herewith disapproved of. Order to be settled, on notice, before Lyon, J.