Opinion
November 28, 1967
Appeal by the State and cross appeal by claimants from a judgment of the Court of Claims awarding the sum of $13,200 with interest to claimants for property taken for highway purposes pursuant to section 30 High. of the Highway Law. Approximately one half of the nine and one-half acre parcel in the Town of Fishkill, Dutchess County, was taken. The testimony shows that both experts agreed that the land before taking had a highest and best use of residential with a value of $1,500 per acre. It was also agreed that the highest and best use after the taking was commercial and that the land was enhanced by the taking. The Court of Claims found the before value to be $40,000 and the after value to be $26,800 for a total damages of $13,200 of which $7,000 was direct for the land taken and $6,200 was consequential representing the excess of the damages to a residence which was not taken over the enhanced value of the remaining land. The residence was valued by claimants' expert at $25,700 and he stated that because of the taking and resultant change in the best use to commercial the residence became valueless. He also was of the opinion that the after value of the remaining land was $2,000 per acre. The State's expert valued the building before and after the taking at $20,000 and he was of the opinion that the land after the taking was worth $4,400 per acre. He also testified that the residence had value in a commercial area and that it could be used in the development of the property for such use. The State contends that there are no consequential damages because of the subsequent benefit to the property and therefore, that the award should be limited to the $7,000 direct damages. Claimants argue that the award should be modified upward to the sum of $30,200 since the residence was rendered useless by the taking. The court found that the building had limited commercial aptitude which finding is supported by the testimony and there is nothing in the record to show that the building must be torn down in order to permit the highest and best use possible to the remaining property. Therefore, the cases cited by claimants are inapplicable here. The court's figures indicate that the value of the residence after the taking was within the range of testimony and need not be disturbed. There is no reason why a building cannot be valued differently for different purposes, as is the case here, and there is nothing in the record to indicate that such a conclusion is erroneous. The State contends that claimants' expert testimony, particularly that the enhancement of the remaining land is only $500 per acre, is inadequate as a matter of law and is therefore entitled to little, if any, probative value. We are constrained to agree (see Fredenburgh v. State of New York, 26 A.D.2d 966). The appraiser for the State gave an after value per acre of $4,400 based upon comparable sales. This is an enhancement value of $2,900 per acre for a total of approximately $14,000 enhanced value after the taking. We necessarily find that this is substantially above any consequential damages to the building as found by the court; this regardless of the actual value placed on the residence. Therefore, because of the increased value of the land, there are no consequential damages and the award must be modified to a total of $7,000, all direct damages (see Brand v. State of New York, 21 A.D.2d 727, 728). Judgment modified, on the law and the facts, by reducing the award to $7,000 and appropriate interest, and, as so modified, affirmed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.