Diocese of Buffalo, N. Y. v. State

Decision Date10 June 1964
Docket NumberNo. 36242,36242
Citation250 N.Y.S.2d 961,43 Misc.2d 337
PartiesThe DIOCESE OF BUFFALO, N. Y., Claimant, v. The STATE of New York, Defendant. Claim
CourtNew York Court of Claims

Kevin Kennedy, Buffalo, for claimant.

Louis J. Jefkowitz, Atty. Gen., by Edward D. Siemer, Special Counsel to the Atty. Gen., of counsel, for the State.


This is an action for damages for the appropriation in fee by the defendant of 0.942± acres of land on July 23, 1958. The taking was accomplished to provide a power line right of way for electrical transmission facilities of the New York State Power Authority.

The appropriated land is designated Parcel No. 1247, on Map. No. 1247 and is located in the rural portion of the Town of Lewiston in Niagara County. Prior to the taking the land in question formed part of the Gate of Heaven Cemetery, owned and operated by the Diocese of Buffalo, a corporation by virtue of Chapter 568 of the Laws of 1951. The general area has been dedicated to use as a cemetery since 1897. From that date until August 16, 1946 title was vested in two Roman Catholic churches in Niagara Falls. However, the cemetery was operated and managed by Riverdale, the adjacent cemetery to the south, until 1942 when operation and management was assumed by the Diocese. In 1946 the Diocese took title to the premises and, in 1954, entered into a boundary-line agreement with Riverdale whereby the easterly end of the south boundary was straightened. While the cemetery, at the time of the taking, fronted on Military Road on the east, Lewiston Road on the west, and Holy Trinity Cemetery on the north, as well as Riverdale Cemetery on the south, access was solely through the last named by virtue of an easement permitting automobile, carriage, and pedestrian traffic to enter and depart through the Lewiston Road entrance to Riverdale.

At trial it was deemed convenient to regard the cemetery as divided into three units, viz., the older developed section, the newly developed section, and the undeveloped section, with areas respectively of 15.555± acres, 3.467± acres, and 9.586± acres. Like nomenclature will be utilized in this memorandum. The older developed area forms the western part of the cemetery, the newly developed area, the central, and the undeveloped portion, the easternmost. The appropriated area is in the undeveloped section and is roughly triangular in shape, 317.28± feet by 385.79± feet by 260.55± feet, the last dimension constituting the frontage on Military Road.

The claimant has proposed a fair market value of the parcel considered as undeveloped cemetery land on July 23, 1958, of either $25,322.62 or $26,375. depending upon the method of computation used, plus $8500. as consequential damages. The State, on the other hand, urges a fair market value of $7200., such sum resulting from adoption of a theory that the highest and best potential use of claimant's land was not as a cemetery at all but rather as property to be held for residential subdivision.

By fair market value is meant the amount of money which a purchaser willing but not obliged to buy the property would pay to an owner willing but not obliged to sell it, taking into consideration all uses to which the land was adapted and might in reason be applied. 4 Nichols on Eminent Domain § 12.2 [3d ed. rev. 1962]. It must, however, be recognized that market value is always based on hypothetical conditions. Hence it is never necessary to show that there was, in fact, a person able or willing to buy. So while market value is still the measure, in the case of property held or improved in such a manner as to render it virtually unmarketable, means other than the usual methods of ascertaining value must, from the necessity of the case, be resorted to. It is, therefore, proper in such cases to deduce market value from the intrinsic value of the property, and its value of its owners for their special purposes. 4 Nichols id. § 12.32.

In attempting to determine this value the Court must consider the evidence offered in view of the two leading New York decisions bearing upon the points involved: St. Agnes Cemetery v. State, 3 N.Y.2d 37, 163 N.Y.S.2d 655, 143 N.E.2d 377, 62 A.L.R.2d 1161; and Mount Hope Cemetery Association v. State, 11 A.D.2d 303, 203 N.Y.S.2d 415, affd. without opinion 10 N.Y.2d 752, 219 N.Y.S.2d 606, 177 N.E.2d 49.

Two general theories of evaluation of undeveloped cemetery land have evolved. The first regards the land appropriated as a current liability rather than an asset because money would have to be expended upon it before it could be sold and used for sepulture. Since the land is not in use it has no present productiveness; it has no current earnings. While it may possible produce future earnings, these are considered speculative and without a dependable foundation. The taking of such land thus does not serve to decrease a cemetery's current revenue. The only measure of damages then is the replacement cost, i. e., the market value of similar property. Laureldale Cemetery Co. v. Reading Company, 303 Pa. 315, 154 A. 372.

The second theory, and that so far adopted by the New York Courts, proceeds upon the premise that attention must rather be focused upon the intrinsic nature and potentialities of the property itself. The income derived from the sale of burial sites in the cemetery in question is determined to be an ascertainable amount not based on speculative considerations. It should be observed that evidence of such income is introduced not to show future business profits nor the loss thereof; it is introduced to establish present value, i. e., 'what a willing buyer would pay in cash to a willing seller'. United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336. In this situation the Court says, in Cementerio Buxeda Inc. v. People of Puerto Rico:

'the inquiry would properly encompass an investigation of the facts as to the capacity of the parcel for burials, its location, past sales in this and other similar cemeteries, the reasonableness of the prices charged for individual burial sites, and in general its future prospects as they would appear to 'a willing buyer'. * * * The fact that there was no market * * * is favorable to its admission. [Citations omitted.] * * * The income derived from the sale of burial sites in this and other cemeteries was an ascertainable amount not based on speculative considerations. The income was not such that the skill of the management of the property was important. A prospective purchaser would obviously look at the sale of burial sites made, the capacity of the cemetery, the cost of interment, etc. This is not to say that valuing the parcel is merely a problem in multiplication. Rather, such figures as sales and cost of interment, among others, are factors which would be considered by a prospective buyer and would help to form a basis for valuing the tract before and after the condemnation.' (196 F.2d 177, 180-181 [1st Cir. 1952], cert. den. 344 U.S. 876, 73 S.Ct. 170, 97 L.Ed. 678.

While New York has adopted this view in St. Agnes and Mount Hope, the State in the case at bar seeks to achieve a different result by attempting to show first, that the method of evaluation in Laureldale Cemetery Co. v. Reading Co., supra, has not been foreclosed by the New York decisions and, second, that the proper application of the formula developed in St. Agnes and Mount Hope in the instant case would lead to such a manifestly unjust result that adoption of different criteria of highest and best use of the property in question is mandated.

The Court agrees with the State that no hard and fast rule of evaluation has been established in this jurisdiction. The Court of Appeals has stated: 'Speaking generally of methods of evaluation, this court stated in Matter of City of New York, Fourth Ave., 255 N.Y. 25, 30, 173 N.E. 910, 911: 'The experts, as well as the judge, may have many different methods in arriving at the same point or at the value of the whole. These considerations are mere matters of evidence to prove facts. As long as competent evidence is received, and none excluded, no rule of law is violated, if the main purpose is served of ascertaining the value of the whole'.' St. Agnes Cemetery v. State, 3 N.Y.2d 37, 41, 163 N.Y.S.2d 655, 659, 143 N.E.2d 377, 379, 62 A.L.R.2d 1161. The Court of Appeals goes on to set forth three categories of cases involving lands subjected to restricted uses which nevertheless allowed the properties to be evaluated on the basis of surrounding lands. These included cases where no evidence was introduced valuing the land for purposes to which the property had been devoted, or such use had been abandoned or the property had not been developed and improved for the restricted use intended. In considering this last group the Court distinguished Laureldale and noted that the Pennsylvania decision involved a cemetery only three years old, a 'minute part' of whose 117 acre tract had been developed with only 417 interments having been made. Furthermore the Laureldale property consisted of three tracts of land separated by highways and a railroad for the benefit of the latter of which the condemnation was made. This differed from the situation in the case under review by the Court of Appeals in that St. Agnes Cemetery had been active for 85 years with over 50,000 interments having taken place. The appropriated land had been acquired 14 years before the taking as essential to its needs. ...

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