Opinion
June 27, 1962
Appeal from the Court of Claims.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Judgment unanimously affirmed, with costs. Certain additional findings of fact made. Memorandum: We find ample proof in the record to sustain the award. The trial court expressly recognized the rule that consequential damages could not be recovered by claimant for diminution in value of the property not taken by interference with access thereto or diversion of traffic therefrom ( Selig v. State of New York, 10 N.Y.2d 34, 39). There was a finding that the highest and best use of a portion of the land not taken was for residential lots. Claimant's property is a short distance east of Route No. 11 — a main highway — where there are gas lines and water from Otisco Lake for use for residential purposes. One parcel of claimant's land was appropriated "without the right of access" for the construction of a limited access expressway (Interstate Route No. 81) which effectively blocked access to Route No. 11 for the purpose of constructing underground utility pipes. Thus, there is clear proof that the taking deprives claimant of access to the gas and water available nearby. The loss of these utilities was a proper subject for consideration in fixing the diminution in value of a portion of the property best usable for residential purposes. The trial court doubtless considered these facts but they are not contained in the decision. We make additional findings to cover the subject matter.