Opinion
July 2, 1953.
Appeal from Supreme Court, Broome County.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
Seven awards for indirect business and real property damages, found under section K 41-44.0 of the Administrative Code of the City of New York, are involved. Six of the claimants are dairy farmers, and the seventh owns and operates a seasonal farm boarding house. None of the claimants' lands were appropriated, and the elimination of the hamlet of Pepacton and the isolation caused by the city's reservoir project in the East Branch of the Delaware Valley, are the principal causes assigned for the business losses and property damage. The city is building a vast reservoir, some twenty-five miles in length, between the villages of Downsville and Margaretville in Delaware County, which will destroy the hamlet of Pepacton and several other hamlets as well along the East Branch of the Delaware River. Pepacton was formerly a shopping center for claimants, although they also shopped occasionally at Downsville. They are now required to travel an additional distance of at least six and a half miles to Downsville, which is the nearest shopping center left. The commissioners found that the city's condemnation project increased claimants' operating costs for shopping, hauling feed, obtaining gravel, hauling milk and obtaining seasonal help; and in the case of the boarding house keeper for loss of boarders. The annual increased operating costs for different claimants ranged from a high of $392.98 to a low of $123.08; and the total business damage awards ranged from a high of $2,000 to a low of $625. The Special Term held that while the evidence submitted to sustain the alleged business losses was not too definite or certain it could not be said to be insufficient as a matter of law, nor were the awards palpably against the weight of evidence. It cited Board of Water Supply v. Bishop ( 211 N.Y. 174) as authority for the propositions that farming is an established business and increased operating costs constitute a business loss or damage. The record indicates that claimants produced the best evidence they had available on this phase of the claims. The awards for indirect damage to real estate values ranged from a high of $3,250 to a low of $500. The commissioners found that the values of claimants' properties were adversely affected by increased operating costs, isolation and a probable eventual loss of the best use of the properties. The testimony of the experts varied widely as to these matters. It seems clear however that the commissioners had a reasonable basis for holding that the elements mentioned would adversely affect the market value of claimants' properties. The city's project not only has or will eliminate the hamlet of Pepacton, but several other adjacent communities as well; leaving to claimants the village of Andes to the north, eighteen miles away; Margaretville to the east, eighteen miles away; Roscoe to the south some twelve miles away over a bad road; and Downsville on the west eight to ten miles away. The commissioners were on the ground, they viewed the terrain and were familiar with the roads obliterated and those replaced. Their judgment should be accepted unless based upon improper evidence or erroneous theories. In a record of this size some error was bound to creep in but on the whole we find nothing to require a reversal. We cannot say that the conclusions of the commissioners were so unreasonable or improbable that they should be rejected. Order unanimously affirmed, with $50 costs and printing disbursements.