Opinion
December 7, 1970
Appeal from a judgment entered August 20, 1968, upon a decision of the Court of Claims. Claimant was awarded $100 for the taking of a narrow strip of land in the Village of Whitney Point, but was denied consequential damages. Appellant owns a farm machinery business together with a repair and service business for large trucks and trailers on 2.975 acres of land abutting the westerly side of Route 11. Appellant's buildings were served by a semi-circular driveway which terminated near the north and south ends of the frontage thus affording easy access for large vehicles. The appropriation covered a strip 2 feet wide across the northerly 158 feet of appellant's frontage. Since respondent plans to restrict access by a chain link fence, the northerly entrance to the driveway will be left unavailable to appellant and its customers. Prior to the taking, tractor-trailers entered the premises at one end and left at the other, but when the north end is closed they will have to engage in substantial maneuvering to turn around and exit. This increased activity would also interfere with other customers who will have to compete with the large vehicles. The trial court found that the highest and best use both before and after the appropriation was for a commercial establishment for farm machinery. The court awarded $100 direct damages, but refused to award consequential damages. Although the market value of the property had admittedly been reduced by the restriction on appellant's access, the court agreed with respondent's expert that such damage resulted from mere inconvenience and not because the remaining access after the appropriation was unsuitable. It is well established that an owner of property abutting a public highway has no right of direct access to his property from every point along the highway but only a right to reasonable ingress and egress to and from the abutting land ( Northern Lights Shopping Center v. State of New York, 20 A.D.2d 415, affd. 15 N.Y.2d 688, 960 cert. den. 382 U.S. 826). Thus, where a claimant's access is rendered merely "circuitous" rather than "unsuitable", it does not give rise to consequential damages since claimant is left with a reasonable alternate means of access ( Priestly v. State of New York, 23 N.Y.2d 152). As the Court of Appeals stated in Priestly ( supra, pp. 155-156): "`Suitable access now is any access by which entrance may be had to a property without difficulty' ( Slepian v. State of New York, 48 Misc.2d 340, 342) and, further, that the question of suitability is a factual one directly related to the highest and best use of the property ( King v. State of New York, 29 A.D.2d 604; Laken Realty Corp. v. State of New York, 29 A.D.2d 1027, supra; Red Apple Rest v. State of New York, 27 A.D.2d 417, 420, supra)". The appropriation left appellant with 42 feet of access, which permitted vehicles to enter and leave the subject premises. The fact that the resultant access may have made it more difficult or inconvenient to enter or leave the premises does not establish unsuitability ( Red Apple Rest v. State of New York, supra). Appellant failed to demonstrate that the remaining access is no longer suited to the highest and best use of the subject property (see Evans v. State of New York, 21 A.D.2d 173) or that the diminished access caused serious permanent damage to his business ( Sukiennik v. State of New York, 26 A.D.2d 769). Appellant argues that the doctrine of damnum absque injuria does not apply in those cases where there was an actual taking as well as a loss of access, but only in those cases where an easement of access has been affected. The contrary is well settled ( Northern Lights Shopping Center v. State of New York, supra). The record supports the court's findings that the remaining access is suitable for the highest and best use of appellant's property. Judgment affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.