Opinion
July 6, 1967
Cross appeals from a judgment of the Court of Claims awarding damages for the appropriation of lands for highway purposes. Claimant's appraiser and the appraiser for the State were in agreement that the premises (consisting of 125 acres, from which 3.3 acres were taken in fee and permanent easement) should be divided into three categories — (1) highway frontage suitable for development as homesites, (2) tillable agricultural land and (3) woods and swamp lands; and the court so found. Claimant's expert envisioned the development of two rows of lots separated by a street or road to be laid out; the State's appraiser would limit the development to 8.5 acres directly abutting the original highway. The trial court was warranted in approving the State's evidence in this regard; as well as the State's theory of damage, holding with respect to the latter "that undeveloped land should be valued on the basis of acreage, keeping in mind whatever probability of use may be assigned to it in arriving at a proper estimate of value of the whole or parts thereof." Appellant does not now object to this conclusion; and accepts the court's valuation of $3,900 per acre for the potential development land; but she does assert (1) that she should be paid direct damage at that rate for the 3.3 acres of frontage taken from the 8.5 acres suitable for development and (2) that the effect of the taking was, by the simple process of subtraction, to leave but 5.2 acres of development land. The State, on the other hand, relying on Matter of City of New York ( Fourth Ave.) ( 255 N.Y. 25, mot. for rearg. den. 255 N.Y. 602, cert. den. 283 U.S. 860), asserts that claimant is not entitled to receive direct damages at full frontage value for the frontage taken, inasmuch as, after the appropriation, lots to the depth of 150 feet originally contemplated could still be developed by extension of the lots so as to include the tillable land in the rear to the necessary depth. The State's appraiser said that "frontage has not been denied [but] taken just momentarily and given right back to you, because there's adequate depth * * * that the taking has merely caused the frontage to be pushed back slightly * * * that there is still frontage on the highway as there was before". The court properly adopted this conclusion and the State on its cross appeal disputes only the amount of the award for consequential damages, which the court predicated on its findings, among others, that the "choice land" was contiguous to and level with the highway while the "rear was uneven, hilly or downgrade and not comparable to the frontage taken." Thus, although the same number (8.5) of acres could be developed for homesites after the appropriation as before, the frontage as reconstituted after the taking would be of substantially less value because of the character of the rear terrain utilized to augment the diminished depth. In this case of a partial taking "The true measure of the damages to which claimant was entitled was the market value of the entire tract and improvements before the taking, less the value of the remainder after the taking". ( Matter of City of New York [ Rockaway Beach], 288 N.Y. 75, 77.) The Court of Claims found, upon sufficient evidence, that, exclusive of improvements, the before value was $59,820 and the after value $51,591, the difference being $8,229 (rounded to $8,250), consisting of direct damage of $850 and consequential damage of $7,400. Analysis directed specifically to the assumed development tract discloses that the 8.5 acres suitable for development prior to the taking, valued by the court at $3,920 per acre or $33,320, compared with the 8.5 acres suitable for development after the taking, valued by the court at $3,049 per acre or $29,916. The difference is $7,404, coinciding with the amount found to be claimant's consequential damage on the basis of the over-all figures found. To be added is the direct damage of $825 for the taking of 3.3 acres at $250 per acre; and the total is $8,229, which was rounded to $8,250. The critical factor is, of course, the consequential damage figure amounting to $871 per acre. The State contends for its expert's computation of total consequential damage of $1,515 which was, however, based upon his conclusion that only 2.32 acres on but one side of the highway were adversely affected; while the record supports the court's finding of consequential damage to the acreage on both sides of the road. Significantly enough, the State's expert, where he did admit consequential damage to frontage, found the value diminished by as much as 50%. Upon consideration of the entire record, we find the award neither inadequate nor excessive. Judgment affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam.