Opinion
March 14, 1962
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
The State appeals on the ground of excessiveness and the claimant cross-appeals on the ground of inadequacy from a judgment of the Court of Claims awarding $8,250 plus interest for the appropriation of a parcel of vacant land located in the County of Tioga for highway purposes. The official taking map described the parcel as 0.620 of an acre. On the trial the claim was amended to include lands of claimant lying in an abutting abandoned highway comprising about four tenths of an acre. The award comprehended the de facto appropriation by the State of these premises also. The parcel, triangular in shape, was bounded on the north by the center line of a town highway which until abandoned by the public authorities many years before the appropriation had entered State Route 17C at an acute angle and had provided the only access from claimant's property to the public highway after the construction about 1931 of a bisecting railroad viaduct a considerable distance to the west. In 1952 claimant purchased the property, then improved by an old frame building, for the sum of $1,000. It was zoned for agricultural purposes and assessed for $600. Claimant's expert witness thought that the highest and best use of the property was for industrial warehousing purposes. This would require a change of the town zoning ordinance and a variance of its setback restrictions, reasonably prophetic events in his judgment. He fixed the value of the appropriated premises in the sum of $21,000. The newly established facility of a large manufacturing corporation in the immediate area heavily influenced his opinion. As one of his appraisal approaches he utilized comparable sales and considered two relatively recent ones of gasoline service station sites abutting Route 17C in the general vicinity of the subject property. Other methods of evaluation which he employed are regarded in law as too speculative to have probative effect. ( Levitin v. State, 12 A.D.2d 6, motion for reargument denied 13 A.D.2d 611.) The State appraiser found farming to be the best use to which the premises could be put and estimated their value to be $300. Although he testified on cross-examination that there was access to the public highway of undetermined width, essentially his opinion was based upon the hypothesis that the premises were isolated. The State chiefly contends that the appropriated parcel was insulated and had to be evaluated nominally for this reason. Its argument runs that upon the discontinuance of the public highway, the fee of the northerly one half part is presumed to have vested in the abutting owner on the north. This is a mistaken concept of claimant's rights in the abandoned highway. The record is silent as to the terms of the conveyance to the owner of its opposite side. It seems apparent that his and claimant's lands are part of "Lot No. 24 of a large tract commonly called Coxe's Patent" and that they derived ownership from a common grantor. That claimant had record title to the southerly one half of the road is not disputed. In these circumstances as the successor in interest of the grantee of the original proprietor, she must be deemed to have acquired a private easement in the entire public highway lying in front of her appurtenant lands which survived its abandonment by the public authorities. ( Holloway v. Southmayd, 139 N.Y. 390.) Moreover, the proof that the occupants of the old building which stood at the easterly end of the parcel used as a means of access to the premises the abondoned highway lying opposite Day Hollow Road at its point of contiguity with Route 17C, while not shown to have been of prescriptive stature, demonstrates at least a conscious recognition by the abutting owner to the north of claimant's concomitant rights. The trial court found that the highest and best use of claimant's property at the time of the appropriation was "for commercial or industrial purposes" and that it had access to Route 17C for a distance of about 75 feet. We cannot say that its findings are not supported by the record. The Trial Judge viewed the premises. The award was within the range of the expert testimony. On this record we see no reason to disturb it. Judgment unanimously affirmed, with costs.