Opinion
June 29, 1961
Appeal by claimants from a judgment of the Court of Claims awarding damages for two parcels of land appropriated pursuant to section 676-a of the Conservation Law for purposes of the Lake George Beach Park. The parcels (designated Nos. 5 and 7) are vacant lands and parts of a former railroad right of way. Each is 66 feet wide and approximately 1,000 feet in length. The southerly end of Parcel 5 fronts on Route 9L, a State highway extending from Route 9 to or near the southerly and easterly shores of Lake George, and at its southerly end is elevated 12 to 15 feet above the grade of Route 9L. Parcel 7 is separated from Parcel 5 by another portion of the former railroad right of way and at its northerly end fronts on Dowling Road, which extends from Route 9 through the Lake George Battleground Park to the Lake George Beach Road. This parcel has frontage on both roads and is bounded on the east by the Lake George Beach Park and on the west by the Lake George Battleground Park and is in close proximity, also, to the Fort William Henry restoration, to a boat launching site maintained by the State and to the so-called steamboat docks, as well as to a large amusement enterprise. Parcel 7, in particular, commands an unobstructed view of a great expanse of Lake George and the surrounding mountains. Plans prepared by an architectural engineer for a motel designed to exploit these and other natural advantages are in evidence. Each parcel is level for the 20-foot width of the former railroad track bed, extending its entire length; but on Parcel 7 a rock formation 10 to 12 feet wide at maximum and of a maximum height of 12 feet commences about 100 feet south of Dowling Road and extends along the westerly side of the parcel to its southerly end, and a less prominent rock formation exists on the easterly side of the parcel, commencing about 429 feet from its southerly end, while for some 450 feet southerly of Dowling Road the grade drops below that of the former track bed to a maximum of 12 to 14 feet. Unquestionably, these adverse factors very substantially affected value but they were not, in our view, so nearly destructive of value in this highly exceptional and advantageous location as the trial court found them to be. Parcel 5 was evaluated by one of claimants' experts at $7,500 and by the other at $8,200. Both appraised Parcel 7 at $30,000. The State's expert testified to values of $3,700 and $6,600 for Parcels 5 and 7, respectively, and the awards were of $4,500 and $9,000, respectively. The trial court found upon sufficient evidence that the highest and best use to which each parcel could be put was as the site of a motel or other similar business; but also found, as requested by the State, and whether or not inconsistently, that Parcel 7 was "unsuitable" as a motel site because the installation of sanitary facilities was not "feasible". These latter findings appear to be without support in the record; and although the composition of the soil and the contour of the ground might have given rise to some difficulties of construction generally, it is clear that the expense and inconvenience necessary to obviate them would have been warranted by the value inherent in the extremely fortunate location of the property within this particular resort area. Considering that claimants' experts valued Parcel 7 at $30,000, the $9,000 award was not too far from the $6,600 to which the State's expert testified, but that figure was predicated upon the witness' opinion that the property could not be advantageously used for a motel, contrary to the conclusion reached by us and to at least one finding by the trial court. The award for Parcel 7 should be increased to $20,000. We find no reason to disturb the award for Parcel 5. Judgment modified, on the law and the facts, to increase the amount awarded for the parcels appropriated from $13,500 to $24,500, with appropriate interest and costs, and, as so modified, affirmed, with costs to appellants. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.