In re Newtown Creek Waterway, Boroughs of Brooklyn & Queens

• Decision Date: 31 December 1940
• Citation: 31 N.E.2d 916,284 N.Y. 493
• Court: New York Court of Appeals Court of Appeals
• Parties: In re NEWTOWN CREEK WATERWAY, BOROUGHS OF BROOKLYN AND QUEENS.

284 N.Y. 493

31 N.E.2d 916

In re NEWTOWN CREEK WATERWAY, BOROUGHS OF BROOKLYN AND QUEENS.

Court of Appeals of New York.

Dec. 31, 1940.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding in the matter of the application of City of New York, relative to acquiring title, where title has not been acquired, to an easement title for the purpose of a waterway to the uplands within the United States Bulkhead Lines of Newtown Creek from Meeker Avenue and Laurel Hill Boulevard to its Southerly terminus at a point about 50 feet north of Metropolitan Avenue, and to the Uplands within the United States Bulkhead Lines of Maspeth Creek from Newtown Creek to its Easterly terminus at a point about 500 feet east of Berlin Avenue, Boroughs of Brooklyn and Queens, as now laid out on the map of plan of the City of New York in accordance with the resolution of Board of Estimate and Apportionment adopted on the 24th day of October, 1930. From an unanimous order of the Appellate Division, Second Department, 259 App.Div. 747, 18 N.Y.S.2d 721, modifying award of Special Term, the City of New York appeals.

Order of Appellate Division reversed and order of Special Term affirmed.

CONWAY, FINCH, and RIPPEY, JJ., dissenting. William C. Chanler, Corp. Counsel, of New York City (Lewis Orgel, Julius Isaacs, and Philip L. Wellens, all of New York City, of counsel), for appellant.

John D. Monroe, of New York City, for respondent.

LEHMAN, Chief Judge.

In condemnation proceedings the Cord Meyer Company received an award of $32,000 for property owned by it and designated in the condemnation proceedings as Damage Parcel No. 11. There was dispute as to the title to that damage parcel. The Cord Meyer Company claimed title to it under a State grant made in 1871. The city of New York claimed that the State and parted with title by much earlier grant. The city appealed from the final decree in favor of the Cord Meyer Company, contending that the court at Special Term had erred in its determination of title. The Cord Meyer Company appealed from the final decree, contending that the court had, through error, awarded inadequate damages. The Appellate Division modified the award by increasing it to the sum of $46,830.

We agree with the courts below that the Cord Meyer Company had title to the damaged parcel taken in these proceedings. The question remains whether the Appellate Division might properly increase the amount of damages awarded. In the city of New York, the Appellate Division, upon an appeal from a final decree in a condemnation proceeding, has power to determine the appeal ‘upon the merits both as to matters of law and fact.’ Administrative Code of the City of New York, s B15-25.0, L.1937, Ex.Sess., ch. 929. Even so the power to reverse a finding of fact may be exercised only in accordance with the general rules of law regulating appeals to that court. It may not set aside a finding of value made at Special Term, unless such finding is based upon erroneous theory of law or erroneous ruling in the admission or exclusion of evidence, or unless it appears that the court at Special Term has failed to give to conflicting evidence the relative weight which it should have and thus has arrived at a value which is excessive or inadequate. The field in which an appellate court may exercise its power to set aside a finding of fact has at times been defined more narrowly. We need not now decide whether under the provisions of the Administrative Code the power of the Appellate Division is as broad as we have said, for in this case it seems clear that the Appellate Division has increased a valuation which accords fully with the evidence.

Before the condemnation of Damage Parcel No. 11, the Cord Meyer Company had title to 215,281 square feet of land. Of this tract only 20,921 square feet were taken by the city. A bulkhead had been erected in 1900 upon the land contained in the damage parcel. The bulkhead unquestionably increased the value of the entire tract. Without it the tract could not be used for the most profitable use for which the land was fitted. The taking of the land upon which the bulkhead had been erected not only took away a portion of the land owned by the Cord Meyer Company but also reduced the value of the remainder of the land. The owner held unimproved land where previously it had owned improved land and the problem presented upon this appeal is whether the justice at Special Term gave reasonable weight to the evidence presented to establish the damages caused by the loss of the benefit of the improvement destroyed by the taking.

There can be no doubt that the owner's danages are the difference between the value of the land before part of it was taken and the value of that which remained after part was taken. The original cost of constructing the bulkhead or its reconstruction cost is a factor in determining the value of the tract before the taking and of its decreased value after such taking. Evidence offered to show such cost, less depreciation suffered in the course of years, would, therefore, be relevant. Matter of City of New York, 198 N.Y. 84, 91 N.E. 278, 41 L.R.A.,N.S., 411, 139 Am.St.Rep. 791. Such evidence was offered by the owner and received by the court. An experienced engineer and dock builder, testifying for the plaintiff, calculated the cost of constructing a bulkhead of the same length and in the same position as the bulkhead taken by the city, at a figure a little under $60,000 and placed the depreciation of the bulkhead at ten per cent of that cost. He also testified that the cost of erecting a bulkhead is $90 a linear foot. The city produced no witness to contradict that testimony. It called a witness who had expert knowledge of the purchase and sale of similar water front property when improved by a bulkhead and of similar property without such improvement. Admitting frankly that he has no expert knowledge of the cost of erecting a bulkhead, the witness testified that in his opinion the land before the taking when improved by a bulkhead was worth 60 cents a square foot and that the land which remained after the taking and without such improvement was worth only 50 cents a square foot. Calculating the damage in that manner he found that by the taking the owner had suffered a loss of $31,988 and the award made at Special Term for the loss is in accord with the testimony of the city's witness.

The record does not show that in accepting the testimony of the city's expert the justice at Special Term disregarded the testimony of the cost of construction of the bulkhead destroyed by the taking or the cost of reconstructing another bulkhead in its place. On the contrary, it appears that the justice at Special Term viewed the tract as an aid in determining the depreciation in the bulkhead erected twenty-three years before the taking. The cost of construction of the bulkhead and the degree of its depreciation at the time of the taking was not the ultimate question to be decided by the court but was only a factor to be considered in determining the loss of value caused by the taking. Matter of City of New York, supra. In this case, indeed, there may be doubt as to whether such costs would be an important factor. Ordinarily an adequate improvement prudently planned and economically constructed enhances the value of the unimproved land by the cost of the construction. Conversely the taking or destruction of the improvement takes away the ‘structural value’ of the improvement which, as we have said in the cited case, is ‘but another name for cost of reproduction, after making proper deductions for wear and tear’ (page 87 of 198 N.Y.,page 279 of 91 N.E., 41 L.R.A.,N.S., 411, 139 Am.St.Rep. 791). The cost of a bulkhead may, however, as the expert witness for the city pointed out, have no direct relation to the value of the benefit derived from the improvement, though concededly it ‘influences' the value of the property. A bulkhead may be necessary for the most profitable use of land but if only a short bulkhead is required in order to bring this benefit to a large tract of land, and resultant...