Crowell v. State

• Decision Date: 21 February 1963
• Docket Number: No. 35980,35980
• Citation: Crowell v. State, 238 N.Y.S.2d 72, 18 A.D.2d 7 (N.Y. App. Div. 1963)
• Court: New York Supreme Court — Appellate Division
• Parties: Harold CROWELL and Dorothy Crowell Powers, Respondents, v. The STATE of New York, Appellant. Claim

Page 72

238 N.Y.S.2d 72

18 A.D.2d 7

Harold CROWELL and Dorothy Crowell Powers, Respondents, v. The STATE of New York, Appellant.

Claim No. 35980.

Supreme Court, Appellate Division, Fourth Department.

Feb. 21, 1963.

Louis J. Lefkowitz, Albany, for appellant. Julius L. Sackman, Albany, of counsel.

Murphy, Rauch & Murphy, Syracuse, for respondents. Dwight J. Huffman, Syracuse, of counsel.

Before WILLIAMS, P. J., and BASTOW, HALPERN, McCLUSKY and HENRY, JJ.

PER CURIAM.

The Court of Claims made an award in this case of $250.00 for the alleged taking of a fee in the highway on which the claimants' premises abutted and an award of $6,040.00 for 'the deteriorating effect of the removal' of shade trees in the highway.

The Court of Claims was in error in assuming that the State had appropriated a fee. The appropriation was only of a highway easement, which is exactly what the State had before the appropriation.

The current appropriation proceeding had its genesis in the following set of facts. The State had not paved the whole of the strip of land over which it had a highway easement. It had paved only a part of it as a two lane highway. On a part of the unpaved portion of the highway, lying between the pavement and the claimants' land, were eleven large shade trees. The State undertook to widen the shoulders of the highway and for this purpose the State found it necessary to remove the shade trees. An action for an injunction against the removal of the trees was brought by the claimants and the injunction action was discontinued upon an agreement by the parties that the State would file an appropriation map and the right of the claimants to damages for the removal of the trees would then be determined in the Court of Claims. The present proceeding is therefore primarily concerned with the question of whether the State had the right to remove the trees without compensating the claimants for the loss of shade and the loss of the esthetic enhancement of their property by the presence of the trees.

It is settled in this State that, if there is a partial taking of abutting property, an allowance may be made, in determining the consequential damages to the remaining property, for the damage caused by the removal of shade trees in the public highway (County of Broome v. McKune, 268 App.Div. 810, 48 N.Y.S.2d 621, aff'd 263 N.Y. 809, 59 N.E.2d 176; Potter v. State, 14 A.D.2d 989, aff'd 11 N.Y.2d 893, 227 N.Y.S.2d 926, 182 N.E.2d 414).

We do not believe that this principle should be extended to cover a case in which there has been no taking of any part of the abutting owner's property. Under sections 150 and 322 of the Highway Law, the abutting owner has an easement of shade from trees within the highway limits and he has the right to harvest the fruit of fruit bearing trees. This interest enables the abutting owner to recover for injury to the trees caused by third persons (Donahue v. Keystone Gas Company, 181 N.Y. 313, 73 N.E. 1108, 70 L.R.A. 761; Osborne v. Auburn Telephone Company, 189 N.Y. 393, 82 N.E. 428) or caused by the public authorities themselves, by conduct not necessarily connected with the use of the highway for highway purposes (Stevens v. State, 21 Misc.2d 79, 197 N.Y.S.2d 111, aff'd 14 A.D.2d 823, 218 N.Y.S.2d 535). But the interest of the abutting owner is subject to the power of the public authorities to improve the highway to its entire width and, if the trees are necessarily removed for the purpose of carrying out a highway improvement, there can be no recovery of damages therefor. '[T]rees within the highway limits may be removed by proper public officials without compensating abutting owners if the removal be necessary for highway purposes. [citing ca...