Raymond v. State

• Decision Date: 19 July 1955
• Citation: 208 Misc. 43,143 N.Y.S.2d 354
• Parties: Isadore RAYMOND, Claimant, v. The STATE of New York.
• Court: New York Court of Claims

Page 354

143 N.Y.S.2d 354

208 Misc. 43

Isadore RAYMOND, Claimant, v. The STATE of New York.

Court of Claims of New York.

July 19, 1955.

Bond, Schoeneck & King, Syracuse, by Francis E. Maloney, William D. Johnson, and William C. Trench, Syracuse, of counsel, for claimant.

Nathaniel L. Goldstein, Atty. Gen., by Douglas L. Manley, Asst. Atty. Gen., of counsel, for the State.

MAJOR, Judge.

The claimant seeks to recover damages alleged to have been sustained by the taking of his easement of access to a public highway known as Thompson Road, by the trespass or informal taking thereof by the State in a 1950 highway project. The State admits the alternation of the highway, but maintains that it was only a change of grade which was within its right under a perpetual easement appropriated in 1943 from claimant's predecessor in title.

The pertinent legal question is, whether the State took any of claimant's property for its 1950 project which it did not take and pay for in its 1943 easement appropriation. If the State took additional property, the Constitution requires that compensation be made therefor.

A motion made by claimant, at the close of his case, to amend the claim to conform with the proof was granted without opposition. On or about October 30, 1943, appropriation proceedings were commenced by the State for the taking of 'a perpetual easement for the purpose of constructing, reconstructing and maintaining thereon a highway in and to all that piece or parcel of property hereinafter designated as Parcel No. 1, situate in the town of Dewitt, County of Onondaga, State of New York, for the construction of U. S. Air Corps Base Access Road as shown on the accompanying map and described as follows', pursuant to Chapter 423 of the Laws of 1942. This easement was taken for the widening of Thompson Road, then designated as County Road No. 13. The property in question was owned by and proceedings were taken against the Syracuse Land Development Co., Inc., the owners in fee.

The description, map and detailed contract plans of this project were filed in the office of the Department of Public Works and a copy thereof was filed in the Onondaga County Clerk's Office on May 15, 1943, containing several sheets, of which sheet number 4 (exhibit No. 6) showed the grade and profile of the proposed construction. No amendments or changes were made on the maps or documents on file, and this project was completed and the road widened in accordance therewith.

Appropriation papers, supplemental detailed and explanatory documents and maps filed in the Onondaga County Clerk's Office are a could on the title, are included within the recording laws, constitute notice of the property appropriated, and define the limitations and extent thereof. Auslander v. Strain, 278 App.Div. 615, 101 N.Y.S.2d 831; Dawson v. Western M. R. Co., 107 Md. 70, 68 A. 301, 14 L.R.A.,N.S., 809.

Two agreements were entered into by the State with the then owner, Syracuse Land Development Co., Inc.,--one was entitled 'Agreement in reference to property acquired pursuant to Chapter 423 of the Laws of 1942' (exhibit A); and the other entitled 'Release of Owner' (exhibit B). Neither the agreement nor the release was recorded in the Onondaga County Clerk's Office as notice to subsequent purchasers, but both documents definitely limited the stipulations, agreements and releases therein contained to the easement set forth on the maps which had been previously filed, by reference and specific statements.

Both contained the clause 'but only for the same purposes or to the same extent described in the said description and map'. By such agreement and release, the Syracuse Land Development Co., Inc., was paid the sum of $3,300 for approximately 900 feet frontage on Thompson Road in one of the high price industrial areas. At the time of this settlement, there were, and still are, two substantial buildings on the property fronting on Thompson Road. The premises were used as a truck depot and for various other purposes. At that time, Thompson Road was practically level and substantially at grade to the premises. All the plans prepared and filed by the Superintendent of Public Works indicated that the road in front of claimant's premises would be at about the same grade as of the time of filing. After completion, it was substantially level in front of the buildings on the premises and at about the same grade as prior thereto, all of which is indicated by exhibit No. 4.

Eminent domain procedure must be strictly followed. Schneider v. City of Rochester, 160 N.Y. 165, page 172, 54 N.E. 721, at page 722. There must be no uncertainty in the description of the property to be taken nor in the degree of interest to be acquired. Matter of Water Commissioners of Amsterdam, 96 N.Y. 351, at page 361. The only property that can be lawfully taken is the precise property designated in the appropriation papers. People ex rel. Johnson v. Village of Whitney's Point, 102 N.Y. 81, at page 86, 6 N.E. 895, at page 897; People ex rel. Eckerson v. Board of Trustees of the Village of Haverstraw, 137 N.Y. 88, 32 N.E. 1111; Hayden v. State, 132 N.Y. 533, 80 N.E. 961.

In the event of uncertainty, indefiniteness or ambiguity, a construction must be adopted which leaves the owner with the greatest possible estate, Mott v. Eno, 181 N.Y. 346, 74 N.E. 229, and every right or interest not included in the public easement remains in the owner of the fee. Thompson v. Orange & Rockland Electric Co., 254 N.Y. 366, 173 N.E. 224; Jackson ex dem. Yates v. Hatheway, 15 Johns. 447. An appropriation proceeding when carried to a conclusion favorable to the claimant, operates as a purchase of the easement or the interest acquired for the sum fixed by the Court or settled by lawful agreement. Vandermulen v. Vandermulen, 108 N.Y. 195, page 202, 15 N.E. 383, at page 385; and the courts will look at the circumstances existing when the proceedings commenced, the situation of the parties, and the subject matter of the documents involved. French v. Carhart, 1 N.Y. 96; Onthank v. Lake Shore & Michigan Southern Railroad Co., 71 N.Y. 194; Winslow v. City of Vallejo, 148 Cal. 723, 725, 84 P. 191, 5 L.R.A.,N.S., 851. The intention should be determined from the various instruments in connection with the acts of the parties. Wilson v. Ford, 209 N.Y. 186, 102 N.E. 614; Mott v. Eno, supra.

The Court finds that all the State acquired by the 1943 appropriation was a perpetual easement over the lands of the Syracuse Land Development Co., Inc., as set forth in the description and appropriation map, at the elevation and grade as shown on the profile on sheet number 4 of the contract drawings (exhibit No. 6), and as finally established by the completed road. When the character or extent of an easement is once fixed, no material alterations can be made in physical conditions, except by agreement. Herman v. Roberts, 119 N.Y. 37, 23 N.E. 442, 7 L.R.A. 226.

By deed dated December 15, 1948, recorded in the Onondaga County Clerk's Office on December 16, 1948 (exhibit No. 14), the claimant herein became the owner of a portion of the property formerly owned by the Syracuse Land Development Co., Inc., and was the owner thereof at the time of the 1950 alteration.

Awards are payable to owner of property at time of taking, and in the absence of an agreement to the contrary, an appropriation claim does not pass with a subsequent transfer of title. In re Houghton Ave. in City of New York, etc., 239 App.Div. 480, 267 N.Y.S. 884; Hendry v. Title Guarantee & Trust Co., 165 Misc. 349, 300 N.Y.S. 741; In re Title Guarantee & Trust Co., 242 App.Div. 80, 273 N.Y.S. 158; Reife v. Osmers, 252 N.Y. 320, 169 N.E. 399, 67 A.L.R. 1101; In re Rochester Avenue in City of New York, 241 App.Div. 614, 268 N.Y.S. 736; Bacorn v. People, 195 Misc. 917, 88 N.Y.S.2d 628; Van Etten v. City of New York, 226 N.Y. 483, page 489, 124 N.E. 201, at page 203; In re Carver Houses, Borough of Manhattan, City of New York, Sup., 114 N.Y.S.2d 707.

The Court, accompanied by the attorneys for the respective parties, viewed the property of claimant and the general vicinity. The premises are not within the legal bounds of a city of village. They are located on the easterly side of Thompson Road about 365 feet north of the intersection of the center lines of Thompson Road and James Street, in the Town of DeWitt, just outside of the City of Syracuse, between the easterly city line and the westerly line of the Village of East Syracuse, in an industrial area which is definitely urban in character. The community has grown rapidly and the property in the area is in a high price bracket. The property is generally level, with sewers, water and...