In re Bd. of Water Supply of City of New York

• Decision Date: 12 April 1938
• Citation: 14 N.E.2d 789,277 N.Y. 452
• Parties: In re BOARD OF WATER SUPPLY OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

277 N.Y. 452

14 N.E.2d 789

In re BOARD OF WATER SUPPLY OF CITY OF NEW YORK.

Court of Appeals of New York.

April 12, 1938.

Proceeding in the matter of the application and petition of George J. Gillespie and others, constituting the Board of Water Supply of the City of New York, to acquire real estate for and on behalf of the City of New York under chapter 724 of the Laws of 1905, and the acts amendatory thereof and supplemental thereto. From an order of the Appellate Division, 253 App.Div. 38, 1 N.Y.S.2d 62, reversing an order of the Special Term affirming an award of the commissioners of appraisal to Ezra Empt and another, claimants, Ezra Empt and another appeal by permission of the Appellate Division, which certified the question whether it was ‘reversible error for the commission to receive and consider evidence as to the market value of the parcel as of October, 1930.’

Order of the Appellate Division reversed and order of the Special Term affirmed, and question certified answered in the negative. Appeal from Supreme Court, Appellate Division, Third Department.

George F. Kaufman, of Kingston, for appellants.

William C. Chanler, Corp. Counsel, of New York City (Henry R. Bright, of New York City, and John E. Egan, of Kingston, of counsel), for respondents.

RIPPEY, Judge.

The extent, nature of the estate to be acquired, and the occasion of taking private property for public use rest in the discretion of the Legislature (Matter of City of New York, 190 N.Y. 350, 83 N.E. 299, 16 L.R.A., N.S., 335) within the limitations established by article 1, §§ 6 and 7, of the State Constitution (People v. Adirondack Ry. Co., 160 N.Y. 225, 54 N.E. 689, affirmed, 176 U.S. 335, 20 S.Ct. 460, 44 L.Ed. 492), although the right of eminent domain is an inherent attribute of sovereignty (Heyward v. Mayor, etc., of City of New York, 7 N.Y. 314). The power may be delegated to a municipal corporation. People ex rel. Burhans v. City of New York, 198 N.Y. 439, 92 N.E. 18. Such power was delegated by the Legislature by chapter 724 of the Laws of 1905, as amended, to the city of New York for the purposes of the construction of the Lackawack Dam and of the Delaware Aqueduct and appurtenances in the vicinity of Lackawack. Acting under the authority thus given, the city of New York filed a real property map in Ulster county clerk's office on July 24, 1936, of what is known as ‘Delaware Section No. 6,’ which included therein the property of Ezra Empt and wife described as parcel No. 1254, and took the property for the purposes specified in such act on November 16, 1936. In condemnation proceedings, the commissioners made an award to the owners which was confirmed by the Special Term but set aside by the Appellate Division as matter of law on the ground that incompetent testimony as to value was received and considered by the commissioners in fixing the amount of the award. The sole question certified for our consideration is whether it was ‘reversible error for the commission to receive and consider evidence as to the market value of the parcel as of October, 1930.’ We think that question involves a determination of no question of fact and may be answered without passing beyond the limits of our jurisdiction as established by law.

It is asserted by the city that the acceptance and consideration of evidence of market value as of the nearest earlier date when the property had a market value within the legal meaning of that expression will establish a new rule by which compensation for property taken by power of eminent domain may be measured and will destroy time-tested standards of measurement. If such were the only evidence considered by the commissioners and it constituted the sole basis for making an award, there would be force to respondent's contention, but such is not the situation in the case at bar.

The Constitution, article 1, § 6, prohibits the taking of private property for public use without just compensation. Just compensation has been measured in cases of this kind by the fair market value of the property taken as of the date of taking. Orgel on Valuation under Eminent Domain, § 16; Van Etten v. City of New York, 226 N.Y. 483, 489,124 N.E. 201;Brooks-Scanlon Corporation v. United States, 265 U.S. 106, 123, 44 S.Ct. 471, 474, 68 L.Ed. 934. It includes the market value of the premises actually taken and also and damages resulting to the residue, including those which will be sustained by reson of the use to which the portion taken is to be put by those acquiring it. South Buffalo R. Co. v. Kirkover, 176 N.Y. 301, 68 N.E. 366. Generally speaking, that is still doubtless the general rule, but even that must yield to exceptional circumstances, for ‘each case necessarily involves different facts and must be considered by itself.’ Banner Milling Co. v. State of New York, 240 N.Y. 533, 546, 148 N.E. 668, 672, 41 A.L.R. 1019. The Legislature has recognized as a matter of public policy this patent fact in enacting section 1083-a of the Civil Practice Act, where the rule is laid down that, in cases where there is no market at the date when value should be determined, value must be fixed at ‘such nearest earlier date as there shall have been any market value thereof,’ and this court in commenting upon that act and affirming the earlier definition of market value said in Heiman v. Bishop, 272 N.Y. 83, at page 86, 4 N.E.2d 944, 945: ‘Prior to the depression, the method of determining the market value of real property was fairly well established by the decisions of the courts. In a general way, the market value of real property is the amount which one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell.’ It is further observed in that case ‘that in the various definitions of market value of real property stated by the courts there appears the words ‘under ordinary conditions' or ‘under ordinary circumstances' or words of like import. Certainly, during the depression, ordinary conditions have not existed in the real property market. Conditions in that market have been extraordinary and unprecedented.’ This court laid down the rule in People ex rel. Amalgamated Properties, Inc., v. Sutton, 274 N.Y. 309, at page 311, 8 N.E.2d 871, 872, that ‘the...