New Rochelle Water Co. v. State

Citation177 N.E.2d 771,220 N.Y.S.2d 809,10 N.Y.2d 287
Decision Date19 October 1961
Docket NumberNo. 33578,33578
Parties, 177 N.E.2d 771 NEW ROCHELLE WATER COMPANY, Respondent-Appellant, v. STATE of New York, Appellant-Respondent. (Claim)
CourtNew York Court of Appeals

Louis J. Lefkowitz, Atty. Gen. (Julius L. Sackman and Paxton Blair, Albany, of counsel), for appellant-respondent.

Sperry Butler, New Rochelle, for respondent-appellant.

BURKE, Judge.

The prime question presented is whether the State of New York in the performance of a sovereign pursuit is liable for the appropriation of facilities of a utility company which lay in public rights of way.

This action consists of two claims brought by a private water company against the State of New York, one for the appropriation of interests in land and other property, and the second for breach of contract. The facts are not in dispute. The State of New York, on behalf of the Thruway Authority, acquired certain streets and abutting lands in the City of New Rochelle, the Village of Pelham Manor and the Village of Ardsley pursuant to section 347 of the Highway Law, Consol.Laws, c. 25. The New Rochelle Water Company had private easements, franchises, water mains, hydrants, branch lines, valves, blow-offs and appurtenances in these streets and abutting lands. The State cut through these various streets and destroyed or removed a number of houses in the construction of the Thruway. In so doing, bulldozers also removed and destroyed the pipe lines, service branches and hydrants, the subject matter of this claim. The water company has, however, conceded that the pipes removed and destroyed, had they been left abandoned, would have remained in those streets to service no one, and the hydrants to protect no one, since the houses for which they provided water were either removed or destroyed and the pipes had no salvage value. It is stipulated that the salvage value of the hydrants which the claimant was not permitted to salvage is $411.37. The State built three stretches of new pipe line to maintain the continuity of the water supply to the consumers not affected by the taking. This cost was borne by the State pursuant to section 346 of the Highway Law.

Claimant contends that the destruction of its property is an appropriation demanding just compensation and is not a mere relocation, the cost of which is to be borne by the State. The State maintains that it is under no obligation to compensate a public utilities company for facilities in a street which are retired from service by reason of a taking of the street for highway purposes. The Court of Claims and the Appellate Division held that the water company was entitled to damages for the State's appropriation based upon the original cost less depreciation.

The obligation of the State to pay the cost of relocation or the value of retired facilities did not exist at common law. In New York City Tunnel Authority v. Consolidated Edison Co. (295 N.Y. 467, 68 N.E.2d 445), where the construction of approaches to the Queens Midtown Tunnel made it necessary to relocate certain public utility facilities maintained by Consolidated Edison Co. in public streets within the area of the approaches, this court said (p. 474, 68 N.E.2d at page 448):

'The 'fundamental common-law right applicable to franchises in streets' is that a utility company must relocate its facilities in the public streets when changes are required by public necessity. (Transit Comm. v. Long Island R. R. Co. (Bell Ave. case), 253 N.Y. 345, 353, 171 N.E. 565, 567.) The rule finds succinct statement in that case (253 N.Y. at page 351, 171 N.E. at page 566): 'Although authorized to lay its pipes in the public streets, the company takes the risk of their location and is bound to make such changes as the public convenience and security require, at its own cost and charge (cases cited)'. * * *

'So far as the project is concerned, it is plainly a public highway improvement since a highway can be carried across a body of water only by bridge or tunnel. The rule cited is peculiarly applicable to street changes required for improved use for the streets themselves. Matter of Petition of Deering, 93 N.Y. 361.' (Emphasis added.)

This principle was changed in part by section 346 of the Highway Law: 'Telephone and telegraph wires * * * and water lines * * * may * * * be relocated in suitable facilities to be installed under or over and across any such thruway. The expense of such relocation and of installing such...

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12 cases
  • Port of New York Authority v. Hackensack Water Co.
    • United States
    • New Jersey Supreme Court
    • November 6, 1963
    ...Tunnel Authority v. Consolidated Edison Co., 295 N.Y. 467, 68 N.E.2d 445, 448 (Ct.App.1946); New Rochelle Water Co. v. State, 10 N.Y.2d 287, 220 N.Y.S.2d 809, 177 N.E.2d 771, 772 (Ct.App.1961); State v. Public Util. Dist. No. 1 of Clark County, 55 Wash.2d 645, 349 P.2d 426 (Sup.Ct.1960); 18......
  • Nassau County v. South Farmingdale Water Dist.
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    ...Hempstead, 41 N.Y.2d 691, 699-700, 395 N.Y.S.2d 143, 148-149, 363 N.E.2d 694, 698-700; New Rochelle Water Co. v. State of New York, 10 N.Y.2d 287, 291, 220 N.Y.S.2d 809, 811, 177 N.E.2d 771, 772; Pennsylvania & Southern Gas Co. v. State of New York, 57 A.D.2d 166, 167-168, 393 N.Y.S.2d 793,......
  • Rochester Telephone Corp. v. Village of Fairport
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    • January 22, 1982
    ...see also New York Tel. Co. v. City of Binghamton, 18 N.Y.2d 152, 272 N.Y.S.2d 359, 219 N.E.2d 184; New Rochelle Water Co. v. State of New York, 10 N.Y.2d 287, 220 N.Y.S.2d 809, 177 N.E.2d 771; New York Telephone Co. v. State of New York, 67 A.D.2d 745, 746, 412 N.Y.S.2d 233; Pennsylvania & ......
  • Connecticut Ry. & Lighting Co. v. New Britain Redevelopment Commission
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    ...the state to pay the cost of relocation or the value of retired facilities did not exist at common law. New Rochelle Water Co. v. State, 10 N.Y.2d 287, 220 N.Y.S.2d 809, 177 N.E.2d 771. The fundamental common-law right applicable to franchises in streets is that a utility company must reloc......
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