Opinion
July 1, 1966
Appeal from the Court of Claims.
Present — Williams, P.J., Bastow, Goldman, Henry and Marsh, JJ.
Judgment unanimously modified on the law and facts in accordance with the Memorandum and as modified affirmed, without costs of these appeals to either party. Memorandum: The proof fails to support the Court of Claims' finding that the highest and best use of the subject premises was as a potential subdivision with a value of $2,500 per acre. There was no proof of the cost to bring into the land, an extremely rocky terrain relatively barren of overburden or soil, public sewer and water, no evidence of the cost to excavate the rock for home construction and utility placement and no evidence of the cost to bring in fill as there was a dearth of it on site. The best evidence in the record indicative of the value of the subject premises based on comparable sales establishes a $700-an-acre-before-taking value for the 25.934 acres taken. Based on such value the award for direct damages should be reduced to $18,000. No award of consequential damages was made although the court found 46.3 acres to be landlocked without access. Upon a finding of 80% damage to such acreage as is claimed by claimants and conceded by the State, claimants are entitled to consequential damages in the amount of $26,000. As so determined judgment should be modified to a total award of $44,000.