Hylan Flying Services, Inc. v. State
| Decision Date | 12 November 1976 |
| Docket Number | No. 54734,54734 |
| Citation | 54 A.D.2d 278,388 N.Y.S.2d 444 |
| Parties | HYLAN FLYING SERVICE, INC., et al., Appellants, v. The STATE of New York, Respondent. Claim |
| Court | New York Supreme Court — Appellate Division |
Robert F. Wood, P.C., Rochester, for appellants.
Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany, for respondent (Dennis Hurley, Albany, of counsel).
Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and DILLON, JJ.
Claimants are land developers and own a tract of land consisting of 316.67 acres which comprises the southeast quadrant at the intersection of Jefferson Road and West Henrietta Road in the Town of Herietta, Monroe County. Approximately 5 1/2 acres of the land which fronts directly on the intersection is occupied by a restaurant and motel complex. Since 1968 claimants have planned to build a shopping center on that portion of the tract used as a private airport. During the same time, the State was preparing to widen Jefferson Road and construct an overpass therefor over West Henrietta Road.
Both the claimants and the State intended to utilize the existing drainage system for their projects, but claimants also planned to construct a ditch for water overflow from the southeast quadrant as well as from their acreasge located at the northeast quadrant of the same intersection. The Town of Henrietta, however, had reservations about the capacity of the existing system to accommodate the anticipated drainage. The State, the Town and the claimants held several conferences regarding drainage, during which it was planned that claimants would give the Town an easement to be used as a drainage ditch, the State would construct the ditch and the Town would maintain it. By October, 1969, however, the claimants had not granted an easement to the Town and declined to do so until the State furnished information concerning the construction of the ditch. In January, 1970 claimants' attorney forwarded a copy of the drainage ditch easement, not yet executed by the Town, to the State Regional Design Engineer in charge of this project. An accompanying letter stated that the easement was 'to be delivered to the Town of Henrietta' but requested the State's work plans showing entrances to claimants' land, and also sought permission to cover the ditch for use as a driveway. The State engineer answered that the work plans had been previously submitted; that the claimants could cover the ditch and that he assumed that construction of the ditch could proceed.
The State engineer claimed that he received no response to this letter. However, one of claimant's attorneys testified that he spoke with the engineer and advised him that the easement arrangements had not been settled with the Town of Henrietta. Despite the conflict, it remains apparent that claimants did not grant, nor did the Town accept, the easement, and in March, 1970 the State contractor entered claimants' land without permission and constructed a ditch which is approximately 7 feet deep, 50 feet wide and 2,000 feet long. The ditch occupies appriximately 2.46 acres of claimants' land. It runs from a point on the south side of Jefferson Road, around the east and south limits of the improved 5 1/2 acre parcel and then southward for approximately 865 feet parallel to and about 15 feet east of the east side of West Henrietta Road.
The construction of such a ditch is statutorily authorized (Highway Law, § 11, subd. 5) and since it carries drainage from a State highway, it serves a public purpose. The State engineer testified that the ditch serves to improve highway drainage and that should it be plugged, it 'could cause some problems to the drainage of the highway'. Thus, while the ditch is useful to claimants, its use is not restricted to them (see Ross v. State of New York,30 A.D.2d 681, 291 N.Y.S.2d 926, affd. without opn. 23 N.Y.2d 807, 297 N.Y.S.2d 309, 244 N.E.2d 877).
The State has exercised the right of eminent domain 'by entry and occupation summarily and without notice to the owner' (American Woolen Co. v. State of New York, 195 App.Div. 698, 701, 187 N.Y.S. 341, 343). It entered upon claimants' land and has, by construction of the ditch, permanently interfered with their physical use, possession and enjoyment of the property. The action of the State constituted a De facto taking (see City of Buffalo v. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895; compare Matter of O'Brien v. City of Syracuse, 54 A.D.2d 186, 388 N.Y.S.2d 866, decided Nov. 5, 1976) which may not be modified, disclaimed or withdrawn (see Kahlen v. State of New York, 223 N.Y. 383, 119 N.E. 883; Queensboro Farm Prod. v. State of N.Y., 6...
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