South Buffalo Ry. Co. v. Kirkover

• Decision Date: 30 October 1903
• Citation: 68 N.E. 366,176 N.Y. 301
• Parties: SOUTH BUFFALO RY. CO. v. KIRKOVER et al.
• Court: New York Court of Appeals Court of Appeals

176 N.Y. 301

68 N.E. 366

SOUTH BUFFALO RY. CO.

v.KIRKOVER et al.

Court of Appeals of New York.

Oct. 30, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the South Buffalo Railway Company against Henry D. Kirkover and others. From an order of the Appellate Division (83 N. Y. Supp. 613) affirming an order of the Special Term confirming the report of commissioners in condemnation proceedings, plaintiff appeals. Affirmed.

This is a proceeding brought by the railroad company under the condemnation law to acquire for its corporate purposes nearly eight acres of land owned by the defendants. Commissioners were duly appointed, who awarded the sum of $10,500 for the land actually taken and the sum of $41,500 as compensation for the damages ‘to the remainder of the parcel of land owned by said defendants, out of which the lands and premises described in said petition and order are taken, * * * caused by the taking of the land described in this proceeding, and the use thereof for railroad purposes in the manner and to the extent shown by the evidence and the proceeding aforesaid. * * *.’ The Special Term confirmed this report, and the Appellate Division affirmed the order of the Special Term to that effect, with a divided court. From the order entered on this determination the present appeal is taken. The land sought to be acquired in this proceeding is a part of about 69 acres of vacant land situated in the southerly portion of the city of Buffalo.John G. Milburn and Frank Rumsey, for appellant.

Wilson S. Bissell and James McC. Mitchell, for respondents.

BARTLETT, J. (after stating the facts).

The single question of law presented by this appeal is as to the rule which should govern the commissioners in awarding compensation for damages to the part of the tract of land not taken. The counsel for the appellant railroad company insists that the proper rule as to damages, in addition to those allowed for the land actually taken, may be thus stated: ‘Compensation is only allowed for such damages to the residue as are caused by the severance from it of the part taken, and (according to some of the cases) in estimating such damages the grade or elevation of the railroad may be taken into account as an element of the severance.’ The learned Appellate Division in its opinion (83 N. Y. Supp. 613) states the rule to be that the owner is entitled to recover the market value of the premises actually taken by such railroad company, and also any damages which resulted to the portion of his premises not taken, not only by reason of the taking of the property acquired by the railroad company, but also by reason of the use to which the property was put by the company. It has been frequently pointed out in judicial opinions that there has been great conflict of authority in this state as to which of the rules above stated was best calculated to do justice between the parties. The early cases in the Supreme Court laid down the rule insisted upon by appellant's counsel. Troy & Boston R. R. Co. v. Lee, 13 Barb. 169;Albany Northern R. R. Co. v. Lansing, 16 Barb. 69; Canandaigua & N. F. R. R. Co. v. Payne, Id. 273; Matter of Union Village & Johnsonville R. R. Co., 53 Barb. 457; Black River & M. R. R. Co. v. Barnard, 9 Hun, 104; Albany & Susquehanna R. Co. v. Dayton, 10 Abb. Prac. (N. S.) 183. In Matter of Utica, C. & S. Valley R. R. Co., 56 Barb. 456, the General Term held that, when land is taken for the construction of a railroad without the consent of an owner, compensation to be paid therefor is not limited to the actual value of the land taken and the depreciation of the residue of the lot from which it is taken by such separation; but the owner is entitled to recover also for any depreciation caused by the use to which it is appropriated. This case was followed in Matter of N. Y. C. & H. R. R. R. Co., 15 Hun, 63, and Matter of N. Y., Lackawanna & Western Ry. Co., 29 Hun, 1. The tendency of judicial decisions in the Supreme Court has been in favor of the more liberal rule adopted by the court below in the case at bar.

Our attention has not been called to any case in this court where the question was presented under the precise state of facts disclosed by this record. In Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423, it was held that in a proceeding by a railroad corporation to acquire a right to lay its tracks in a street or highway, the fee of which is in the owner of the adjoining land, the proper compensation is: First. The full value of the land taken. Second. The fair and adequate compensation for the injury the owner has sustained and will sustain by the making of the railroad over his land; and for this purpose it is proper to ascertain and determine the effect the conversion of the street into a railroad track will have upon the residue of the owner's land. In Newman v. Metropolitan Elevated Ry. Co., 118 N. Y. 618, 23 N. E. 901,7 L. R. A. 289, Judge Brown (page 623, 118 N. Y., and page 902, 23 N. E.) uses this language: ‘The principle upon which compensation is to be made to the owner of land taken by proceedings under the general railroad law has been frequently considered by the courts of this state, and the rule is now established, first, that such owner is to receive the full value of the land taken; and, second, where a part only of land is taken, a fair and adequate compensation for the injury to the residue sustained, or to be sustained, by the construction and operation of a railroad.’ The case in which the learned judge wrote was one of that large class of elevated railway cases in the city of New York involving injury to the easements of light, air, and access, no land being taken. In Bohm v. Metropolitan Elevated Ry. Co., 129 N. Y. 576, 29 N. E. 802,14 L. R. A. 344, Judge Peckham uses...