In re Thompson

• Decision Date: 06 October 1891
• Citation: 127 N.Y. 463,28 N.E. 389
• Parties: In re THOMPSON, Commissioner of Public Works. In re BUTLER.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 463

28 N.E. 389

In re THOMPSON, Commissioner of Public Works.

In re BUTLER.

Court of Appeals of New York,

Second Division.

Oct. 6, 1891.

Appeal from supreme court, general term, second department.

Application of Hubert O. Thompson, commissioner of public works, etc., to extinguish certain water-rights for the use of the city of New York. The award of commissioners appointed to assess damages was affirmed by the special term, and again by the general term. Claimant, Butler, appeals. Affirmed.

William Allen Butler and Willard Parker Butler, for appellant.

Arthur H. Maston, for respondent.

PARKER, J.

This proceeding was brought pursuant to the powers conferred on the commissioner of public works of the city of New York by chapter 445 of the Laws of 1877, and the various acts amendatory thereof, to acquire the right to divert and keep diverted from the Bronx river all the water of the river north of and above the dam at Kensico. The commissioners awarded to the claimant, who was the owner of a large and valuable farm through which the river ran, damages in the sum of $7,270. From the order confirming such report and award successive appeals have been taken by the claimant to this court, the latter appeal being especially authorized by the act of 1877. But the fact that an appeal to this court is permitted does not bring up for review a question of fact arising upon conflicting evidence, and this court has no jurisdiction to review the decision of the general term, unless error of law in the proceedings be found. In re Thompson, 121 N. Y. 277, 24 N. E. Rep. 472.¹ That case had its origin in proceedings taken under chapter 490, Laws 1883, but the provision permitting an appeal to the court of appeals is the same as in the act authorizing the proceedings before us, and the decision cited is therefore applicable and controlling. Unless, then, some error of law requires a reversal, the decision of the general term must stand.

The only exception to which our attention is called relates to an effort on the part of the owner to prove what had been paid by the petitioner for water-rights appurtenant to a neighboring parcel on the same river. At folio 7467 the counsel for the owner offered to prove that the city of New York purchased from Robert White the right to divert the waters from one-half of the water-shed of the Bronx river, and paid him the sum of $21,991.66 for such rights, and his privileges in connection with a certain mill upon what is known as the ‘Powder-Mill Property’ at Scarsdale. The commission declined to rule on the offer, at the same time, by its chairman, saying, in effect, that a ruling would be made as the evidence should be presented. In that connection no other evidence was offered, and the exception then taken is, of course, not available. But, in view of the stipulation making the evidence as to all parcels applicable to any other, it is claimed that this appellant is entitled to the benefit of any exception taken to the rejection of evidence bearing on the question of the value of his water-power. We shall assume, without deciding, that this claim is well founded. Robert White was vested in fee with the riparian ownership in such premises at the time of the commencement of the proceedings to acquire title by the city. Pending the proceedings he died. Subsequently, pursuant to an agreement with his heirs, a conveyance was made to the city. Respecting the manner in which the proof was sought to be made, the owner offered in evidence the deed, which expressed a consideration. But, for the purpose of proving the price paid, it was not competent. Mayor, etc., v. McCarthy, 102 N. Y. 630, 8 N. E. Rep. 85. One or more witnesses were asked to state the sum paid, and, as the objection went solely to the competency of the evidence for any purpose, it must be assumed that the witnesses were competent to answer the question. And the question, then, is, was the rejection of the evidence as to the amount paid by the city for the White water-power error for which a reversal should be had?

This question has been presented to the courts of last resort in several of the states, but not with the same result. In Massachusetts, New Hampshire, Illinois, Iowa, and Wisconsin it is held that actual sales of other similar land in the vicinity, made near the time at which the value of the land taken is to be determined, are admissible as evidence for the purpose of arriving at the amount of compensation. Gardner v. Brookline, 127 Mass. 358;Packing, etc., Co. v. City of Chicago, 111 Ill. 651;Town of Cherokee v. Land Co., 52 Iowa, 279, 3 N. W. Rep. 42;Railroad Co. v. Greely, 23 N. H. 242;Washburn v. Railroad Co., 59 Wis. 364, 18 N. W. Rep. 328. While in some of the other jurisdictions, notably Pennsylvania, New Jersey, Georgia, and California, it is held that sales of similar property are not admissible for the purpose of provingthe value of property about to be taken. Railroad Co. v. Hiester, 40 Pa. St. 53; Railroad, etc., Co. v. Bunnell, 81 Pa. St. 414; Railroad Co. v. Ziemer, 124 Pa. St. 560, 17 Atl. Rep. 187; Railroad Co. v. Benson, 36 N. J. Law, 557; Railroad Co. v. Pearson, 35 Cal. 247-262;Railroad Co. v. Keith, 53 Ca. 178. The reasons assigned for the conclusion reached in the cases last cited are, in the main, that the test in legal proceedings is, what is the present market value of the property which is the subject of controversy? It may be shown by the testimony of competent witnesses, and on cross-examination, for the purpose of testing their knowledge respecting the market value of land in that vicinity, they may be asked to name such sales of property, and the prices paid therefor, as have come to their attention. But a party may not establish the value of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grant or and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken. If some evidence of value, then prima facie a case may be made out, so far as the question of damages is concerned, by proof of a single sale, and thus the agreement of the parties which may have been the result of necessity or caprice would be evidence of the market value of land similarly situated, and become a standard by which to measure the value of land in controversy. This would lead to an attempt by the opposing party to show- First, the dissimilarity of the two parcels of land; and, second, the circumstances surrounding the parties which induced the conveyance,-such as a sale by one in danger of insolvency, in order to realize money to support his business, or a sale in any other emergency which forbids a grantor to wait a reasonable...