Belott v. State, 39599

• Decision Date: 20 July 1966
• Docket Number: No. 39599,39599
• Citation: 272 N.Y.S.2d 49,26 A.D.2d 749
• Parties: John B. BELOTT, Respondent-Appellant, v. STATE of New York, Appellant-Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 49

272 N.Y.S.2d 49

26 A.D.2d 749

John B. BELOTT, Respondent-Appellant, v. STATE of New York, Appellant-Respondent.

Claim No. 39599.

Supreme Court, Appellate Division, Third Department.

July 20, 1966.

Louis J. Lefkowitz, Atty. Gen., Joseph F. Gibbons, Albany, of counsel, for appellant-respondent.

Simon, Rosch, Brown & Wait, Ballston Spa, John Davison, Albany, of counsel, for respondent-appellant.

Before HERLIHY, J.P., and REYNOLDS, TAYLOR, AULISI and STALEY, Jr., JJ.

PER CURIAM.

Cross appeals from a judgment of the Court of Claims awarding to claimant damages in the sum of $23,490 resulting from the permanent appropriation of lands in the Town of Clifton Park, Saratoga County.

The property involved consisted of two contiguous farms, one, the Howard farm, the right to remove whose deposits of molding sand claimant had purchased for $1,000 by agreement executed in 1941, and the other, the Tunnard farm, in which claimant had secured a similar right for the sum of $250 in 1950. The mining rights in the Howard farm extended for 12 years with options for two additional consecutive 12-year terms and the rights in the Tunnard farm were for a term of eight years with an option for one eight-year extension. In 1959 the State appropriated 4.493 acres of the Howard farm and 2.475 acres of the Tunnard farm destroying the sand deposits estimated to have totaled 170,000 tons in those areas. In addition to his claim for damages arising from such appropriations claimant sought to recover for an asserted De facto taking of an additional eight acres of the Tunnard parcel occasioned by the highway contractor's excavation and removal of the sand deposits therein for use in constructing a road embankment.

Claimant, testifying in his own behalf, based his evaluation of damages on his estimate of the market potential for the product and the tonnage of sand which reasonably could be expected to be mined and sold during the remaining periods of time provided by the agreements. Claimant also produced expert witnesses who, like claimant, testified to values which bore no relation to market value as that concept of value is understood in the law of eminent domain. Their estimates suggested a pretaking worth of each of the subject properties in the neighborhood of a quarter of a million dollars. On this appeal claimant asserts that he should be awarded damages of $35,640 for his interests in the lands formally taken and the additional sum of $55,350 for the De facto appropriation--measured solely by the profit which would have been made had he sold all of the sand at the time of the taking.

The court held that the State was not liable for the De facto taking, a conclusion with which we agree (Konner v. State of New York, 227 N.Y. 478, 485, 125 N.E. 843; Morris v. State of New York, 10 A.D.2d 754, 755, 198 N.Y.S.2d 59). As to the rest of the claim the court used lower dollar figures, but employed the same improper method of...