Opinion
May 20, 1971
Appeal from the Court of Claims.
Present — Marsh, J.P., Witmer, Gabrielli, Moule and Cardamone, JJ.
Judgment unanimously modified on the law and facts in accordance with the memorandum and as modified affirmed, with costs to claimant. Memorandum: Claimant's 73 1/2 acre farm lay on the east side of Jamesville Road in the Town of Dewitt, Onondaga County. Butternut Creek ran through it, with 18.2 acres of the farm between the road and the creek and the remaining 55.3 acres lying east of the creek. The State appropriated 12.587 acres of the land east of the creek, leaving 4 1/2 landlocked acres east of the appropriation and 38.3 acres between the appropriation and the creek. The Trial Judge awarded claimant the total sum of $24,880, plus interest. Included therein was $6,000 awarded for damages for the landlocked 4 1/2 acres. Since the court found that amount based mostly on the State's computations, and claimant makes no objection thereto, this part of the award should be affirmed. The Trial Judge made no award for consequential damage to the 18.2 acres fronting on Jamesville Road. The record supports that determination. He found that the highest and best use of the appropriated parcel and the 38.3 acres lying next west of it was for recreational purposes, and with this finding we agree. In two principal respects, however, we disagee with the trial court's conclusions. Claimant's appraiser failed to support his testimony concerning the values of the subject farmland and his "comparable" farm sales in other communities, with information as to necessary adjustments, and likewise he failed to make adjustments with respect to his recreational comparables and did not demonstrate that any consideration was given to the necessary adjustments thereof. His plan for arriving at a valuation of the subject land for recreational purposes was ingenious, but fraught with difficulties of proof which he failed to overcome. We find in the record, however, evidence given by the State's expert witness, supported by sufficient proof of comparable values, that the appropriated acres had a value of $668 per acre, amounting to direct damages for the 12.587 acres of $8,400. In addition, his testimony supports an award of $1 per linear foot for 750 feet of a gravel roadway included in the taking. Although the trial court made no award for the loss of this roadway, in its brief the State concedes such amount. This being the only acceptable evidence of such damage, it should be adopted and awarded to claimant. Claimant seeks consequential damage to the 38.3 acres lying between Butternut Creek and the appropriated parcel, contending that before the appropriation she had an easement of access thereto by prescription across adjoining property owned by Allied Chemical and Dye Corp., which was also appropriated by the State and extinguished at the time of the subject appropriation. The trial court found that claimant failed to prove continuity of use, open, notorious, hostile and adverse to the owner, and therefore, denied claimant consequential damage for its loss. We disagree with this conclusion. Claimant had used the "right-of-way" for years, and in 1929 conveyed a part of her lands with the right in the grantee of ingress and egress from Jamesville Road over this route. This right-of-way was exercised by that grantee and his assigns along with claimant, and in law such use was sufficient to constitute "exclusive use" by claimant and her assigns ( Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 512; Pagano v. Kramer, 25 A.D.2d 887, 888, affd. 21 N.Y.2d 910; 1 Warren's Weed, New York Real Property [4th ed.], Adverse Possession, § 1.07; 2 N.Y. Jur, Adverse Possession, § 117). Although the State might permit claimant to continue using this right-of-way, claimant could have no assurance thereof and the extinguishment of claimant's right is compensable ( Wolfe v. State of New York, 22 N.Y.2d 292, see 4 Nichols, Eminent Domain [3d ed.], § 14.1). Both parties agree that without access the 38.3 parcel is worth $100 per acre. The State's appraiser valued this parcel at $668 per acre, before the appropriation, the same as the 12.587 appropriated acres. Claimant's consequential damages, therefore, by reason of the State's appropriation and extinguishment of the easement of access to the 38.3 parcel over the Allied Chemical and Dye Corp. property is $568 per acre, amounting to the sum of $21,750. Claimant presented evidence of the cost of building a bridge across the creek for alternate access to this parcel; but since that cost far exceeds the consequential damage to the parcel, it may not be employed herein ( Goldsmith v. State of New York 32 A.D.2d 607). The judgment should be modified, therefore, to award to claimant for direct damages the sums of $8,400 for the 12.587 acres appropriated and $750 for the roadway, totaling $9,150; and for consequential damages the sum of $6,000 for the 4 1/2 landlocked acres and $21,750 for the 38.3 acres for loss of access, totaling $27,750, for a total of $36,900, with interest.