184 N.Y. 341 | NY | 1906
This is a proceeding in behalf of an incorporated village to acquire certain lands and water rights of the appellant for the purpose of obtaining for the village an additional supply of pure and wholesome water. It was instituted in 1896, before chapter 181 of the Laws of 1875, entitled "An act to authorize the villages of the State of New York to furnish pure and wholesome water to the inhabitants thereof," had been repealed by the Village Law (Chap. 414 of the Laws of 1897, taking effect July 1, 1897), and hence was regulated by the act of 1875 and the amendments thereof in force at the time, and by the provisions of the Condemnation Law (Code Civ. Proc. chap. XXIII). An answer to the petition was interposed by the appellant and others; the issues were referred to a referee, who determined them in favor of the petitioner; commissioners were appointed who awarded $500 to the appellant for the property and rights belonging to him which were sought to be acquired, and the report of the commissioners was confirmed at Special Term by a final order, which has been unanimously affirmed by the Appellate Division.
Upon this appeal a number of objections are made to the validity and regularity of the proceeding which we do not deem it necessary to discuss further than to say that we regard them as untenable, and we find no error in the record justifying the interference of this court, save in respect to the action of the commissioners in estimating the value of the property taken. *344
The original petition was verified on May 26, 1896, and it is stipulated by the parties that it was served on the appellant on or before June 1, 1896. It is apparent, therefore, that the proceeding cannot be regarded as having been instituted before May 26, 1896. As early as September 25, 1895, however, the authorities of the village of St. Johnsville had commenced to construct an intake basin and lay pipes on the lands of the appellant, which it desired to condemn, and the work was so far completed that water was turned into the pipes and taken for the use of the village on October 25, 1895, while the superstructure over the basin and other work by the village on such lands was completed by the 16th of January, 1896.
Neither the reservoir nor the piping nor any portion of the structures thus placed upon the premises of the appellant were taken into consideration by the commissioners in estimating the value of the land upon which they had been located. The commissioners make this perfectly clear in their report where they expressly declare that in fixing the appellant's compensation at $500 they do not make any allowance "for the value of the pipe, the intake basin or the superstructure covering the same nor for any of the work or construction placed upon the appraised premises by the plaintiff, or for any enhanced value of the premises by reason of such construction having been placed thereon by the plaintiff."
It is conceded that the appellant forbade the entry upon his land; and the engineer who supervised the work for the village testified that he understood that whatever was done was done in opposition to the will of Mr. Smith. There is a statement in the brief for the respondent to the effect that "apparently he subsequently consented," but we can find no sufficient basis in the evidence for any such inference. In disposing of the appeal we think it must be treated as an established fact that the invasion of his property by the village was not only without the consent of the appellant, but against his express command and remonstrance.
Under these circumstances, we think that the landowner was entitled to have the value of the structures thus placed upon *345 his premises by the village, without authority of law, before the institution of the condemnation proceedings, considered by the commissioners of appraisal in arriving at their determination as to the compensation which ought justly to be made to him by reason of the taking of his lands.
The invasion of the appellant's property was clearly tortious, the village and its agents being mere trespassers. (Matter ofSt. Lawrence Adirondack R.R. Co.,
The question which arises here has twice been considered by the Supreme Court at General Term — first in Matter of Long IslandR.R. Co. (6 Thomp. Cook, 298) in the second *346 department, and later in the fourth department in Matter ofN Y, West Shore Buffalo Ry. Co. (37 Hun, 317).
In the first of these cases the railroad company, before instituting proceedings to condemn, laid its tracks upon the appellant's land. The appellant sought to prove before the commissioners that the entry was made without the owner's consent and claimed compensation for the increased value created by the improvements which the railroad had made by laying its tracks upon the land. The court held that the commissioners erred in rejecting the evidence offered to establish the entry without consent and the value of the improvements made by the trespasser, saying: "We are of opinion that the railroad company, if they entered without consent, were trespassers as to the then owner * * * and that any fixtures they placed on the land, while their occupation was that of trespassers, belong to the owner who is such at the time of making the valuation." As to the method in which the damages were to be ascertained, the court added: "In making such proof we do not understand that the value of each tie and rail is to be determined; the railway track composed of rails and ties is a fixture of the land and its value as a fixture enhancing the value of the land for the beneficial enjoyment thereof is the measure of compensation."
In the second case cited the gist of the decision is contained in the following extract from the opinion of Mr. Justice BOARDMAN: "Any structure wrongfully placed upon the lands by the railway company became by that act a part of the land and entered into its value. The case tends to show that the railway company entered upon the lands in question without right or authority from the owners and built the road in part thereon. The property so put upon the land added to its value and was properly included in the appraisal as property of the landowners to be taken by the railroad company."
We are of opinion that these cases were correctly decided and that the rule of law therein applied entitles the appellant in the case at bar to a new appraisal. This rule has been recognized and enforced by the courts of other states. The *347
case of United States v. Land in Monterey County (
In Graham v. Connersville, c., R.R. Co. (
The doctrine thus asserted is stated by Mills in his well-known treatise on the Law of Eminent Domain as follows: "A trespasser is not entitled to any benefit for improvements made on the land during the time of his occupation. Houses erected on the land of another belong to the owner, without *348 compensation to the party erecting, except where legislatures have granted relief to those who have made improvements on land in good faith, believing they had good title. The rule follows that all erections belong to the owners, and cannot be removed by the parties placing them there; and hence, on a subsequent condemnation, the value of the land, with the structures also, must be paid." (Mills on Eminent Domain [2d ed.], § 148.) Lewis, however, another text writer of ability, declares that the cases which we have cited "proceed upon a strict and technical rule of the common law, that structures placed upon land by a trespasser become a part of the realty and cannot be removed," and he refers to a considerable number of decisions in other jurisdictions to the effect that "the owner in a proceeding to ascertain the just compensation is not entitled to the value of the works placed upon the property, though without right, for the purpose of adapting the property to the public use intended." (2 Lewis on Eminent Domain [2d ed.], p. 1144.) The scope and effect of the group of cases sustaining this proposition is accurately stated by Mr. Carman F. Randolph, of New Jersey, in a still more recent work on this branch of the law, where he says: "The broad ground is taken that while an irregular entry for public use is a technical trespass, yet the title to improvements should not vest in the owner because the possession can be legitimated by lawful proceedings, and for the broader reason that the improvements themselves are not intended to be adjuncts to the freehold, but are made simply to subserve a use in which the landowner has no interest." (Randolph on Eminent Domain, p. 222.) Justice v.Nesquehoning Valley R.R. Co. (87 Pa. St. 28) is typical of the class of cases which give countenance to this view.
We are quite clear that it should not receive the sanction of the courts of this state. So far as actual intent is concerned, a personal trespasser who annexes a structure to another's freehold does not mean that it shall become the property of the landowner any more than does a trespassing railway company or municipality which does the same thing *349 in contemplation of acquiring the land at some future time by the exercise of the power of eminent domain. The law affixes the consequences to the act, not the intent. It says to those who invoke the power of eminent domain as well as to all others: If you invade land without legal right and place structures of a permanent character thereon, those structures belong to the landowner. There is no more harshness in applying the rule to one class of trespassers than to the other. In both cases its application tends to prevent the perpetration of a wrong. Its operation in this state has been, and will undoubtedly continue to be most salutary in constraining those municipal and other corporations which the state has authorized to exercise the power of eminent domain not to assume the possession of lands in advance of any right so to do, and thus practically nullify, during the period of unlawful possession, that provision of the Constitution which guarantees the citizen against being deprived of his property for public use without just compensation.
The difference is obvious between a clear case of trespass like that before us and a case in which after a lawful entry, followed by improvements upon the land, the occupant finds it necessary to institute condemnation proceedings by reason of a doubt as to the title or for the extinguishment of liens upon the property. "It may be assumed as the law," said Mr. Justice CULLEN inPhiladelphia, R. N.E.R.R. Co. v. Bowman (
There is nothing in Matter of St. Lawrence Adirondack R.R.Co. (66 Hun, 306), cited in the respondent's brief, which affects the question under consideration. Section 3379 of the Code of Civil Procedure (which is a section in the Condemnation Law) provides that at any stage of a proceeding to condemn, the court may authorize the plaintiff, if in possession of the property sought to be condemned, to continue in possession upon giving such security or depositing such sum of money as the court may direct. The General Term in the case cited recognized the construction put upon that section by this court in Matter ofSt. Lawrence Adirondack R.R. Co. (
In holding, as we do, that the appellant is entitled to have the improvements made upon his land by the respondent while a trespasser taken into consideration in ascertaining his compensation, it must be distinctly understood that the measure of such compensation is neither the cost of the improvementsnor their value or the value of their use to the village. The true inquiry is how much do the improvements placed upon the property enhance the value of the appellant's land.
The orders of the Appellate Division and the Special Term should be reversed, with directions to appoint new commissioners of appraisal to determine the appellant's compensation in accordance with this opinion, with costs in all courts to appellant.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT and VANN, JJ., concur; CHASE, J., not sitting.
Ordered accordingly. *351