Priestly v. State, s. 41702

• Decision Date: 20 November 1968
• Docket Number: 41711,Nos. 41702,s. 41702
• Citation: 242 N.E.2d 827,295 N.Y.S.2d 659,23 N.Y.2d 152
• Parties: , 242 N.E.2d 827 Ada E. PRIESTLY et al., Appellants, v. STATE of New York, Respondent. Ada E. PRIESTLY et al., Appellants, v. STATE of New York, Respondent. Claim
• Court: New York Court of Appeals Court of Appeals

Page 659

295 N.Y.S.2d 659

23 N.Y.2d 152, 242 N.E.2d 827

Ada E. PRIESTLY et al., Appellants, v. STATE of New York, Respondent.

Ada E. PRIESTLY et al., Appellants, v. STATE of New York, Respondent.

Claim Nos. 41702, 41711.

Court of Appeals of New York.

Nov. 20, 1968.

Bernard Samuels, Lloyd Withers and Saul H. Alderman, Syracuse, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Henderson G. Riggs and Ruth Kessler Toch, Albany, of counsel), for respondent.

BURKE, Judge.

Three parcels of land, the subject of the two claims herein, were located on the approach to the Thousand Island Bridge and were taken by the State for highway and bridge approach purposes. Before the taking, the entire property, of which these parcels were a part, covered some 80 acres in a roughly rectangular shape running on a north-south axis, with its western boundary parallel to the bridge approach and the bridge itself. The parcels taken, totaling some 2.8 acres in the extreme southwestern corner of the property, included a frontage of some 200 feet on the east side of the bridge approach and were appropriated without right of access to the bridge approach. There were structural improvements on the northwestern portion of the property and its northern boundary fronted on the St. Lawrence River. The remaining acreage, including the land immediately to the east of the appropriated parcels, was unimproved. Both prior to and after the taking, there was access to the remaining property by means of a road to the west of the bridge approach and parallel to it which ran in a northerly direction and intersected with another road which ran eastery under the bridge and continued part of the way onto claimants' property in the vicinity of a residence and barn. At the trial, the parties stipulated that there was legal and physical access to the subject property both before and after the taking by means of the road described above.

The claimants' expert appraiser testified that the highest and best use of the subject property was that of commercial and residential development and that, because the remaining access was inadequate for such development, the remaining property had suffered consequential damages. He testified to a before-taking value of $132,500, an after-taking value of $79,900 and total damages of $52,600, equally divided between direct and consequential damages. The State's expert testified that the highest and best use of the subject property was residential with limited developmental potential. He testified that the loss of direct access damaged the developmental potential of the remaining land east of the appropriated parcels and, therefore, also found consequential damages. He found a before-taking value of $57,300 and total damages of $33,300, of which $16,300 wad direct and $17,000 was consequential.

The Court of Claims in its decision found a before-taking value of $80,000 and an after-taking value of $40,000, with the total damages of $40,000 being equally divided between direct and consequential. The consequential damages were allocated $16,000 to one claim, and $4,000 to the second claim. In the Appellate Division, direct damages were not disputed, but the State contended that, on the law and on the facts, the award of consequential damages was improper. The Appellate Division held that there was no basis in the record to support the award of consequential damages. Citing our decision in Selig v. State of New York, 10 N.Y.2d 34, 217 N.Y.S.2d 33, 176 N.E.2d 59 and Appellate Division cases, it held that, since access was not destroyed or rendered unsuitable and insufficient, the resulting circuity of access was noncompensable and, therefore, struck from the judgment the awards for consequential damages.

Claimants' appeal from that determination revolves upon the rather murky distinction between access which is merely 'circuitous' and, therefore, insufficient as a basis for consequential damages and that which is 'unsuitable' and, therefore, compensable. It is beyond dispute that mere circuity of access does not constitute a basis for an award of consequential damages (Bopp v. State of New York, 19 N.Y.2d 368, 372, 280 N.Y.S.2d 135, 227 N.E.2d 37; Selig v. State of New York, 10 N.Y.2d 34, 217 N.Y.S.2d 33, 176 N.E.2d 59, supra). But, this legal proposition is controlling in a particular case only if, as a question of fact, the access involved is shown to be Merely circuitous (Laken Realty Corp. v. State of New York, 29 A.D.2d 1027, 289 N.Y.S.2d 570; Red Apple Rest v. State of New York, 27 A.D.2d 417, 280 N.Y.S.2d 229). If the facts established at the trial of a claim show that the access involved is more than merely circuitous so that it can be characterized as 'unsuitable,' compensability follows. The trial court in this case, by necessary implication from its award of consequential damages and by its reference to the damage caused by the loss of access to the bridge approach, found the access remaining to be unsuitable, while the Appellate...