Claim No. 41213 | N.Y. App. Div. | Oct 27, 1966
Appeal by the State from a judgment of the Court of Claims awarding claimants a total of $6,000 plus interest as direct and consequential damages for the taking of a portion of a right-of-way located in Wawayanda, Orange County. The interest taken was the front portion of a right of way which afforded access to a drive-in theatre owned by claimants. The portion of the easement taken was improved by a widened paved entrance-way, a sign and a marquee. Furthermore, as a result of the taking of the easement, the point at which the easement abutted the road was considerably narrowed. Claimants assert as a result of the narrowing there remained insufficient room for a sign or marquee necessitating their purchase of an adjoining piece of land to accommodate them. The trial court found total damages of $6,000, $2,000 of which were direct and $4,000 consequential damages. We have little difficulty in affirming the trial court’s award for direct damages. This award is well within the range of the testimony as to the value of the interest and improvements taken. We cannot agree with the State’s contention that claimant having only a right of way before, lost nothing as a result of the taking or alternatively that claimants did not own the sign or marquee. Claimants’ deed of conveyance establishes a right to maintain the marquee and sign on the easement and with respect to the issue of title the language of the deed particularly when coupled with claimants’ proof of possession establishes at least a prima facie title (see Levin v. New York El. R. R. Co., 165 N.Y. 572" date_filed="1901-02-05" court="NY" case_name="Levin v. New York Elevated Railroad">165 N. Y. 572, 57A-575; 2 Nichols, Eminent Domain, § 5.2, subd. [3], p. 28), which the State has not dispelled. We find no basis, however, on which to sustain the award of consequential damages. Any consequential damages sustained were in effect due to more circuitous access and an award on this basis cannot be upheld (Selig v. State of New York, 10 N Y 2d 34; Ottaviano v. State of New York, 26 A D 2d 844 and cases cited therein). Judgment modified, on the law and the facts, to reduce the award to $2,000 with appropriate interest, and, as so modified, affirmed, without costs. Gibson, P. J., Herlihy, Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.