Opinion
January 17, 1962
Appeal by the State from a judgment of the Court of Claims which awarded claimants the sum of $15,100, plus interest, as damages for the appropriation of two easements across a right of way in which claimants have an easement. Claimants cross-appeal on the ground of inadequacy and contend that the appropriation authorizes the State to deprive them of access to the rear of their property. Claimants are the owners, as tenants in common, of three lots, with commercial buildings thereon, which are a part of a shopping center in the Town of Union, Broome County. Customer parking space is provided in front of these buildings between the buildings and the highway. Access to the rear of the property for delivery and removal purposes is the ownership by claimants of an easement, consisting of a right of way to be used in common with others over a 60-foot strip of land over adjoining property in the rear. The State appropriated a 50-foot right of way across this 60-foot right of way, at the north end thereof, to provide vehicular access from the public street to a parking lot appropriated by the State from other persons. The State also appropriated a right of way for pedestrians over an 8-foot strip across the same 60-foot right of way. Both appropriations limit the extent of the easement to an access drive and pedestrian access and reserve to the owners the right to use the property so long as such use does not interfere with its use for such purposes by the State. We agree with the Court of Claims that the taking of such a limited easement is not tantamount to a fee taking and does not give the State any right to cut off claimants' access or use of their 60-foot right of way. In such a case the State's expert testified that the claimants' damage would be only nominal. We think claimants have sustained more than nominal damage by the appropriation but we regard the award of $15,100 as excessive for the limited easement taken. This case does not present a situation such as that in Spinner v. State of New York ( 4 A.D.2d 987). In that case the State appropriated an easement which entitled it to create embankments or excavations for unlimited highway purposes. In other words, the State took the right to change the contour of the land which could be exercised in a manner which would physically bar access to claimants' property completely. In the instant case the easements taken are limited to vehicular and pedestrian passage for access purposes, Judgment modified by reducing the amount of the award to $5,000, plus interest, and, as so modified, affirmed, without costs. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur. [ 27 Misc.2d 186.]