Erly Realty Development, Inc., v. State

Decision Date24 January 1974
Docket Number47087,Nos. 47086,s. 47086
Citation43 A.D.2d 301,351 N.Y.S.2d 457
PartiesERLY REALTY DEVELOPMENT, INC., Respondent-Appellant, v. STATE of New York, Appellant-Respondent. William E. RYAN et al., Respondents-Appellants, v. STATE of New York, Appellant-Respondent. Clain
CourtNew York Supreme Court — Appellate Division

Louis J. Lefkowitz, Atty. Gen. (Vernon Stuart and Ruth Kessler Toch, Albany, of counsel), for appellant-respondent.

Nathan M. Medwin, Albany (Francis Bergan, Albany, of counsel), for respondent-appellant.


COOKE, Justice.

These are cross appeals from two judgments in favor of claimants, entered May 15, 1972 and June 16, 1972 respectively, upon a decision of the Court of Claims.

These claims arose out of the appropriation in 1964 of a 27-acre strip dividing tracts aggregating about 66 acres located on the northerly side of Washington Avenue in the City of Albany. The individual claimants (Claim No. 47087) owned about 47 acres and were the shareholders of the corporate claimant (Claim No. 47086) which held title to the remainder of about 19 acres. The individual claimants were awarded judgment for $998,625.50 and the corporate claimant $535,947.50, both plus appropriate interest.

The bed of Patroon Creek, a small stream running generally parallel and to the north of Washington Avenue, and an easement over a 33 foot strip on each side of the creek were conveyed by Stephen Van Rensselaer to the City of Albany in 1850, the deed containing the following reservation:

But the rights and privileges above granted are not to be used in such a manner as unnecessarily to injure the lands for agriculature purposes, or to prevent the proper and necessary use of said water for ordinary farming purposes by the owners of the adjoining land or to prevent the erection of convenient bridges or passage across said creeks.

Title to claimants' land devolved in part from Van Rensselaer who conveyed a portion to Theophilus Roessle (Roeple) in 1864, excepting and reserving therefrom the 33 foot strips on each side of the creek (the fee of which strips was conveyed to the City of Albany in 1888). Also in 1864, Roessle purchased from Bingham other lands, which abutted Washington Avenue, and the combined tract less the excepted creek and strips was ultimately conveyed to claimants' predecessors in title.

In January, 1956, William Ryan, Mary Stephens, Genevieve and Julian Erway conveyed an undivided one-half interest in the tract in question to Donald Lynch and, in the same month, Erly Realty Development, Inc., the corporate claimant, was incorporated with three of said persons named as the original directors and subscribers of the certificate of incorporation. In March, 1956, the corporation received a tax title from the County of Albany to the combined parcel, and in May of that year the individuals conveyed to the corporation at 7.8-acre parcel fronting on Washington Avenue. By a deed dated in July, 1956 and recorded in November, 1957, the individuals conveyed to the corporation a parcel of almost two acres near the eastern end of the tract, same fronting on Washington Avenue and with access to Tudor Road, an unfinished roadway running north off Washington Avenue. The remainder of the corporation's land, a parcel of approximately 9.4 acres to the west of the former Van Rensselaer-Roessle tract but not abutting Washington Avenue, was acquired from the Niagara Mohawk Power Corporation in 1957.

In May, 1956, the corporation leased the 7.8-acre parcel (upon which a motel was later constructed) to the Albany Royal Theatre Corporation for a term of 99 years and about three months later the individual owners covenanted not to permit the erection or operation of a motel or similar structure upon any portion of their lands on Washington Avenue for 25 years. In 1959 the individuals leased to the Hellman Motel Corp. a 200 by 400 foot parcel, directly east of the 7.8-acre parcel, and upon which a theater subsequently was built. These two parcels were unaffected by the taking.

Thus, generally speaking, before appropriation, the individual claimants and the corporation owned an irregularly shaped piece of land with approximately 1,000 feet of Washington Avenue frontage (excluding the portions leased for motel and theater use) and with a maximum depth of over 1,200 feet. Of the aggregate, containing approximately 66 acres, about 23 were north of Patroon Creek and the 33 foot strip northerly of it and the entire tract, except for the leased parcels, was undeveloped. The appropriation divided the remainder into 11 acres to the north (of which less than one acre was owned by the corporation) and approximately 20 acres to the south (about 2 acres of which were owned by the corporation), not including the leased parcels, with about 500 feet frontage on Washington Avenue.

The State contends that the interests of the corporation and the individual claimants were subject to a separate rather than a unified appraisal. In order to treat different parcels, owned variously by individuals and a corporation controlled by those individuals, as one tract for the purpose of assessing severance damages incident to an appropriation, there must be (1) contiguity, (2) unity of use and (3) unity of title or ownership (Guptill Holding Corp. v. State of New York, 20 A.D.2d 832, 833, 247 N.Y.S.2d 800, 802; cf. O. & W. Lines v. State of New York, 30 A.D.2d 998, 294 N.Y.S.2d 193).

Although the State argues that certain of the parcels were noncontiguous, those owned by the individuals and those of the corporation were adjacent and lacked any physical boundary. Patroon Creek, which cut across lands owned by the individual claimants and a corner of the corporation's premises, was capable of being traversed by bridges and the trial court properly found that claimants had the right to erect such structures. '(A) public highway actually travelled, a railroad, a canal, or a creek running through a large tract devoted to one purpose does not necessarily divide it into independent parcels, provided the owner has the legal right to cross the intervening strip of land or water.' (4A Nichols, Eminent Domain (3d ed.), § 14.31(1); cf. Matter of Town Bd. of Town of Islip (Fishman), 12 N.Y.2d 321, 328, 239 N.Y.S.2d 541, 546, 189 N.E.2d 808, 811; Strong v. State of New York, 38 A.D.2d 241, 243--244, 328 N.Y.S.2d 913, 915--916).

There was testimony that claimants intended to develop the entire tract for commercial purposes and that it had been assessed on the tax rolls in one entry solely in the name of the corporation. The easternmost parcel of the corporation, except for highway frontage, was surrounded by lands of the individuals; the westernmost lands of the corporation were landlocked but for access to Washington Avenue across premises of the individuals; and the areas owned by claimants north of Patroon Creek were similarly without independent access. The individuals restricted the use of their lands to the purposes for which the corporate motel...

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