Pomeroy v. State
| Citation | 18 Misc.2d 377,191 N.Y.S.2d 84 |
| Decision Date | 22 September 1959 |
| Docket Number | No. 34455,No. 34125,34125,34455 |
| Parties | Donald T. POMEROY, Samuel N. McCain, Donald F. Mullin and Robert J. Conan, Claimants, v. STATE of New York. Claim B. F. GOODRICH COMPANY, Claimant, v. STATE of New York. Claim |
| Court | New York Court of Claims |
Bond, Schoeneck & King, Syracuse, for claimants Donald T. Pomeroy, Samuel M. McCain, Donald F. Mullin and Robert J. Conan by William D. Johnson, Syracuse, of counsel.
Costello, Cooney & Fearon, Syracuse, for B. F. Goodrich Co. by George R. Fearon, Syracuse, of counsel.
Louis J. Lefkowitz, Atty. Gen., for the State by Harold S. Coyne, Asst. Atty. Gen., of counsel.
The above entitled and numbered claims were filed to recover damages for property appropriated by the State of New York for Oswego Boulevard in the City of Syracuse, New York. Proposed findings of fact and conclusions of law have been filed on behalf of both claimants and the State.
The owners and lessee are entitled to compensation for such damages under these appropriations.
The claimants, Donald T. Pomeroy, Samuel N. McCain, Donald F. Mullin and Robert J. Conan were the sole owners in fee of the property affected.
The B. F. Goodrich Company is a lessee of the entire property, and its lease had 6 years, 2 months and 7 days to run from the date of appropriation. There were two appropriations: (1) for land taken in fee; and (2) a temporary easement in the remainder. The land affected by the temporary easement was improved by two substantial masonry buildings which the B. F. Goodrich Company used to carry on its business.
The appropriation map and notice set forth the temporary easement as follows:
'Map of property in the City of Syracuse, County of Onondaga in and to which the Superintendent of Public Works deems the acquisition or exercise of a temporary easement, interest or right to be necessary for purposes connected with the State Arterial Highways passing through cities, pursuant to Article XII-B of the Highway Law, as amended.
'Temporary Easement for Removing or Razing Buildings and Appurtenances.
'A temporary easement for the purpose of removing or razing all or a portion of certain buildings also certain appurtenances for use during the construction of the hereinafter designated highway until the approval of completed work, unless sooner terminated it deemed no longer necessary for highway purposes and released by the Superintendent of Public Works, in and all that piece or parcel * * *.
'Reserving, however, to the owner of the property, the right and privilege of using this property providing the exercise of such right and privilege does not, in the opinion of the Superintendent of Public Works, or other authorized representative acting for The People of the State of New York, or its assigns interfere with or prevent the user and exercise of the rights hereinbefore described'.
The State project has not been completed. No approval of the completed work has been given. The temporary easement has not been terminated or released by the Superintendent of Public Works. It is still effective and the State may, at any time before such approval, termination or release is given, proceed to perform the acts therein mentioned, such as 'removing or razing all or a portion of certain buildings also certain appurtenances for use during the construction'.
Up to the time of the trial, the State has exercised none of the rights acquired therein, or interfered with the claimants' buildings, except by cutting off the northeast corner thereof, and the removal of the corner had slight effect on the remainder of the buildings. Conversations were held between the parties pertaining to this, and no proof of damages has been offered except as allowed herein. This temporary easement continues without a date being set for its termination. The period of its effectiveness has not been unnecessarily prolonged, extended or otherwise used to cause it to become permanent.
The damage accruing from a temporary easement is measured by the rental value of property for the period effective. United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311; Spencer v. State, 206 App.Div. 376, 201 N.Y.S. 261.
Inasmuch as the claimants were left in possession of the property covered by the temporary easement, by virtue of the reservation therein, and the State has made no...
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