Fonda, J. & G. R. Co. v. State

• Decision Date: 16 February 1968
• Docket Number: No. 44354,44354
• Citation: 287 N.Y.S.2d 134,29 A.D.2d 240
• Parties: FONDA, JOHNSTOWN AND GLOVERSVILLE RAILROAD COMPANY, Appellant-Respondent, v. STATE of New York, Respondent-Appellant. Claim
• Court: New York Supreme Court — Appellate Division

Page 134

287 N.Y.S.2d 134

29 A.D.2d 240

FONDA, JOHNSTOWN AND GLOVERSVILLE RAILROAD COMPANY Appellant-Respondent, v. STATE of New York, Respondent-Appellant.

Claim No. 44354.

Supreme Court, Appellate Division, Third Department.

Feb. 16, 1968.

Maider, Smith & Maider, Gloversville (Lydon F. Maider, Gloversville, of counsel), for claimant-appellant-respondent.

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

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and STALEY, JJ.

STALEY, Justice.

These are cross appeals from a judgment in favor of claimant entered September 12, 1966 upon a decision of the Court of Claims in an appropriation case.

The property appropriated was a portion of the former right of way of an electric railway owned by the claimant. The railroad commenced operations in 1902, and discontinued its operations in April 1938. Thereafter, the tracks, poles and wires were removed and portions of the right of way were conveyed to abutting owners by the claimant.

Pursuant to section 30 of the Highway, Law, the State appropriated 23.638 acres of this former right of way for the improvement of Route 5. The appropriations consisted of five parcels; parcels Nos. 35, 40, 46, 50 and 63. An award was made of $200 for parcel 40 and $500 for parcel 63, and no claim of error is made by the claimant as to these awards, since the parcels had not been improved by the claimant.

The remaining parcels were along the bed of the former railroad. In the process of the original construction, extensive excavations and rock cutting were required on the parcels appropriated. Claimant contends that, in addition to the current market value of land, it is entitled to the current cost of the excavation which the railroad undertook prior to 1902. Claimant produced as a witness an engineer, who had participated in the preparation of a detailed survey of the entire right of way in the year 1925, and, by use of his original notes, calculated the amount of the rock and earth excavation made on the appropriated parcels, and applied the 1959 cost of such excavation to reach a total of $64,323. Claimant contends it is entitled to be paid this sum, since the State saved this amount by using the former railroad bed in connection with the construction of the improvements on Route 5.

In determining just compensation for land appropriated, the fundamental question is what the owner has lost, not what the taker has gained. (St. Agnes Cemetery v. State of New York, 3 N.Y.2d 37, 163 N.Y.S.2d 655, 143 N.E.2d 377, 62 A.L.R.2d 1161; Onodaga County Water Auth. v. New York Water Serv. Corp., 285 App.Div. 655, 139 N.Y.S.2d 755; Matter of New York, Westchester & Boston Ry. Co., 151 App.Div. 50, 135 N.Y.S. 234.) The court may consider 'any special intrinsic quality of the property taken, rendering it particularly adaptable for the purpose for which it was taken.' (Matter of New York, Westchester & Boston Ry. Co., supra, p. 56, 135 N.Y.S. p. 239.) Thus, in the Matter of Port Auth. Trans-Hudson Corp. v. Hudson Rapid Tubes Corp., 20 N.Y.2d 457, 285 N.Y.S.2d 24, 231 N.E.2d 734, it was held that an award of scrap value for tunnel property, which was actually to be used in a public service, could not be said to be fair and just.

It is clear, however, that the claimant is not entitled to recover as an item of damages any money saved by the State in availing itself of the former railroad site. (Connolly v. State of New York, 197 Misc. 1052, 96 N.Y.S.2d 54; Matter of Superintendent of Highways of Town of Frankfort, 193 Misc. 617, 84 N.Y.S.2d 78; Matter of City of New York (New Gen. Hosp.-Cinelli), 280 App.Div. 196, 112 N.Y.S.2d 101, affd. 305 N.Y. 835, 114 N.E.2d 38.) The Court of Claims properly rejected the claimant's contention that it was entitled to damages for the cost of excavation of rock and earth for the original construction of the railroad bed.

The claimant's real expert assigned a market value of $8,100 for the total area appropriated. He testified that the land was suitable for building lots, and that the area with road frontage was reasonably worth $2 per front foot. For rear acreage he gave a lump value of $200. He testified that he was familiar with sales of building lots in the area. Although the claimant had sold lots from the right of way to abutting owners, not one of these sales was offered as evidence of value. Claimant's expert did not examine the property for the purposes of making an appraisal until December 1965, and his valuation date was given as 1959--1960. These valuations were based solely on personal opinion of the witness; no factual support was given to...