Konner v. State
| Decision Date | 06 January 1920 |
| Citation | 125 N.E. 843,227 N.Y. 478 |
| Parties | KONNER v. STATE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Victoria Konner against the State of New York. From a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (180 App. Div. 837,168 N. Y. Supp. 345) reversing a judgment entered upon a determination of the Court of Claims awarding damages to the claimant and dismissing her claim, the complainant appeals.
Affirmed.
Appeal from Supreme Court, Appellate Division, Third Department.
Joseph Rosch, of Liberty, for appellant.
Charles D. Newton, Atty. Gen. (Sherman L. Cheney, First Deputy Atty. Gen., of counsel), for the State.
In the year 1912 the claimant was the owner of a small tract of land in the village of Parksville, in the county of Sullivan. It was situated on the easterly side of a public highway. The surface of the ground sloped upward from the highway for a distance of 85 feet at an angle of about 45 degrees. On such tract of land beyond such abrupt slope the claimant had a house and barn. The Court of Claims found that--
‘There was a dry stone retaining wall about three feet in height along the base of said hill and claimant's premises separated from the traveled portion of the highway by the usual shallow highway ditch.’
It further found:
‘(4) In the month of August or September, 1912, the construction of state highway No. 5223, route No. 4, was proceeding on the general site of the former highway in front of claimant's premises. * * *
‘(5) That in the doing of said work said contractor then and there removed said dry stone retaining wall at the base of claimant's premises, and with a steam shovel or otherwise excacated into the earth in the rear of said wall a distance of between 4 and 12 feet and upon and into the premises of claimant and trespassed thereon in so doing in order to widen the improved road at that point. * * *
‘(6) That, thereafter, and at about the end of April or the first part of May, 1913, when the frost was thawing from the soil, the greater portion of the said hill and the premises of the claimant slid from its place down over the site of the retaining wall and of the excavation made by the state's contractor and upon and over the highway into the brook.
‘(7) That said removal of said dry stone wall and the excavation made by said contractor in the rear thereof were negligently and carelessly done, and the omission to furnish protection and support for claimant's land was negligence of the state, and that said operations of the state and its contractor were done and performed without claimant's consent, upon the premises of the claimant, and caused the slide of the claimant's land and the injuries thereto.’
The court further found that as a result of the slide claimant was damaged to the amount of $2,200. The claimant filed a noticeof intention to file a claim against the state as required by section 264 of the Code of Civil Procedure. Such notice alleged that she was damaged as the result of the carelessness and negligence of the state in the construction of said highway which ‘passes alongside the premises of the claimant.’
The claim subsequently filed by her is in substantial accord with the notice of intention to present a claim. At the commencement of the trial in the Court of Claims she moved to amend the claim filed by her by inserting therein certain words to include a claim for ‘trespass and unlawful entry’ upon her property and a further general allegation as follows:
‘That on or about the 1st day of May, 1913, prior as well as subsequent thereto, the said state of New York through its officers and agents, unlawfully entered into and upon said premises and excavated the retaining wall and portion of the front yard and approaches of said premises and the land in front of same and destroyed the same by its wrongful acts.’
The claim was amended accordingly. The court found as a conclusion of law:
‘That the state was guilty of a trespass upon the premises of the claimant and was negligent in the performance of the work aforesaid and in the plans and directions therefor. * * *’
Judgment was entered upon the award of the Court of Claims. An appeal was taken to the Appellate Division, where by a divided court the judgment was reversed, and the claim dismissed. Konner v. State of New York, 180 App. Div. 837,168 N. Y. Supp. 345.
We do not in this opinion discuss the question considered by the Appellate Division herein relating to the claimant's notice of intention to file a claim, the claim filed by her, and the amendment thereto, because we have reached the conclusion that there is no statute which will permit the claimant to recover as against the state on the facts as shown by the record either on her claim as originally filed or as amended.
The highway which ran along the westerly side of the claimant's property was a part of ‘route 4’ as described in section 120 of the Highway Law (Consolidated Laws, chapter 25) to be improved at the sole expense of the state. The commissioner of highways determined upon the construction of that highway, including the part thereof in front of claimant's property, and the surveys, maps, plans, and specifications were prepared accordingly. They provided for a deviation from the line of the existing highway which resulted in the necessity of acquiring a strip of the claimant's property at the foot of the hill next to the existing highway.
Such maps, plans, and specifications were adopted as provided by statute, and a contract was entered into for the construction of such highway. It appears from a map in evidence that the state by its plans proposed to take and occupy a strip of the claimant's land along the highway, triangular in form running from a point at the northwesterly corner thereof adjoining the highway, to a width of 16.4 feet at the southwesterly corner of her property adjoining the highway; it being a strip of land about 145 feet long. The map showing the strip to be acquired is indorsed:
Highway Law, § 148, as it existed prior to the amendment, by chapter 261, Laws of 1917,...
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...299.) If there is an unauthorized trespass on the land of another by a contractor, the State cannot be held liable. (Konner v. State of New York, 227 N.Y. 478, 125 N.E. 843.) In all cases cited by claimant in his memorandum filed with the Court, wherein the State or other public authority w......
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