Kelly v. State
| Decision Date | 17 November 1967 |
| Docket Number | No. 42252,42252 |
| Citation | 28 A.D.2d 1177,284 N.Y.S.2d 548 |
| Parties | Stephen A. KELLY et al., Respondents-Appellants, v. STATE of New York, Appellant-Respondent. Claim |
| Court | New York Supreme Court — Appellate Division |
Raphael, Searles & Vischi, New York City, for respondents-appellants (Sidney Z. Searles, New York City, of counsel).
Louis J. Lefkowitz, Atty. Gen., for appellant-respondent (Jean M. Coon, Albany, of counsel).
Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY, and GABRIELLI, JJ.
Appeal and cross appeal from a judgment of the Court of Claims awarding claimants $171,877 for an appropriation of some 41 acres located in southern Dutchess County for highway purposes.
Prior to the appropriation claimants owned a total of over 350 acres on which were located some 16 structures, including two residences and several farm buildings. The property was concededly well developed and maintained and the trial court's finding of the highest and best use as an estate farm is well supported. The evidence amply indicates the property was ideally suited for this purpose and that if it were offered for sale as a whole might well have been purchased for such a continued use. The fact that there have been no recent comparable sales clearly does not indicate that there would be no market for the instant property as an estate farm in this particular area where the evidence is that only a minimum amount of property so suited still existed and none of that was available for sale. Furthermore, considering the effect the appropriation had on the property, particularly on the farming operation conducted thereon, and the difficult valuation problem faced by the court in this case, the trial court's assessment of damages constituted just compensation except for its award with respect to the gravel deposit located on the premises. While valuable mineral deposits on condemned land constitute an element of damages to be considered (S. Berzal & Co. v. State of N.Y., 8 A.D.2d 886, 186 N.Y.S.2d 983), an award based on such a theory is inconsistent with the use attributed to the property here and the location of the gravel mound in close proximity to the principal dwelling house on the estate farm. Accordingly a value of $800 per acre, the figure used for the surrounding acreage, should be substituted for the $3000 per acre utilized by the court in valuing the 8 acres comprising the gravel mound and the award therefore reduced by $17,600.
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State ex rel. State Highway Commission v. Mann
...land from being valued separately and aggregated is that this may contemplate inconsistent uses of the land. See Kelly v. State, 28 App.Div.2d 1177, 284 N.Y.S.2d 548, 550 (1967); Hultberg v. Hjelle, 286 N.W.2d 448, 456 (N.D.1979). See also Arkansas State Highway Comm'n v. Delaughter, Anothe......
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Green Mountain Marble Co. v. State Highway Bd.
...a court has valued lands over a mineral deposit based upon a use other than that of mining the minerals. In Kelly v. State, 28 A.D.2d 1177, 284 N.Y.S.2d 548 (Sup.Ct.App.Div.1967), a farm was condemned which had a large gravel deposit close to the dwelling house. The court found the highest ......
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...on such a finding, but in most instances it is one of the factors considered in arriving at market value. (See Kelly v. State of New York, 28 A.D.2d 1177, 284 N.Y.S.2d 548 (decided November 17, The State further argues that there was no credible evidence to support the court's finding of da......