St. Agnes Cemetery v. State

• Decision Date: 23 May 1957
• Citation: 163 N.Y.S.2d 655,62 A.L.R.2d 1161,3 N.Y.2d 37,143 N.E.2d 377
• Parties: , 143 N.E.2d 377, 62 A.L.R.2d 1161 ST. AGNES CEMETERY, Respondent, v. STATE of New York, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 655

163 N.Y.S.2d 655

3 N.Y.2d 37, 143 N.E.2d 377, 62

A.L.R.2d 1161

ST. AGNES CEMETERY, Respondent, v. STATE of New York, Appellant.

Court of Appeals of New York.

May 23, 1957.

Jacob K. Javits, Atty. Gen. (Sidney Kelly, Jr., and James O. Moore, Jr., Albany, of counsel), for appellant.

Joseph J. Casey, Albany, for respondent.

BURKE, Judge.

This appeal involves an award made by the Court of Claims for a portion of claimant's cemetery land, appropriated by the State Highway Commission for highway purposes. This cemetery is located two miles north of the city of Albany and has been in existence for almost a century, during which time there have been over 50,000 interments. Prior to this appropriation which occurred in 1952, the cemetery contained about 150 contiguous acres of land. The condemned strip traverses and bisects a parcel of almost 14 acres of land located at the southern extremity of the cemetary. This particular parcel was acquired by the cemetery in 1938 not only to meet the growing demand for cemetery plots, but because it fronted on a public highway to the south, from which an exclusive, safe and convenient means of access could be had. Prior to this acquisition, the only means of ingress and egress to and from this cemetery was over a roadway easement through another cemetery which intersected a railroad track at grade level, a way which was inconvenient for the people of Albany due to a general westward shift in the population of that city. By 1951 this parcel, as well as the adjoining cemetery property, was improved by arranging it as a modern garden-type cemetery that is, in place of the headstones which are found in a monument cemetery, there are bronze markers set in concrete at ground level which gave the area a parklike appearance. As part of this improvement, plans were drawn for the construction of a memorial entrance abutting the highway to the south with a central drive extending from the entrance to a memorial statue in the interior portion of the cemetery which provided a suitable theme for the new entrance. From the highway on the south there would be an unobstructed view of the new entrance, the central drive with a series of separate gardens on each side and the memorial statue. The improvement by the State raised an embanked four-lane highway over the condemned strip which destroyed not only the access through this new entrance on the south the cemetery lots in the area taken by condemnation, but also depreciated the value of the cemetery lots north of the new highway and the lots south of it in the separated portion of this parcel.

As the Appellate Division has affirmed the judgment of the Court of Claims 'in all things', the facts are not open to our review. Likewise, as the finding of value is supported by substantial evidence, it also is 'immune from further review' (Matter of City of New York (Sound View Houses), 307 N.Y. 687, 688, 120 N.E.2d 858, 859).

Thus, the sole issue presented by this appeal is whether the finding of value is the product of the application of an erroneous principle of law (Matter of City of New York, Exterior St. Borough of Bronx, 285 N.Y. 455, 458, 35 N.E.2d 39, 40).

The State charges the courts below with the adoption of an illegal measure of damages in determining the value of a cemetery property. The criticism is not that there is a lack of testimony in the record supporting the valuation but rather that an improper theory of appraisement was used. It is the State's position that the damages are to be measured by the value of the cost of replacement of the land. The loss to this particular cemetery, at maximum, it says, is the cost of replacement.

The trial court, the State contends, capitalized net profits to arrive at the value of the property. Such a statement is best tested by an examination of the method of valuation or appraisal resorted to by the court. The Court of Claims, following the general rule, found the reasonable market value of the affected area of the cemetery before appropriation and after appropriation (Matter of Prospect Park & Coney Is. R. Co., 13 Hun 345, 347). In determining the value before and after appropriation, the court referred to the sales prices which the cemetery had obtained for the sale of burial lots located in the adjoining garden sections. The value of the burial lots in the affected area of the cemetery was determined by applying the unit value based on the average sales price per lot, less sales costs, of the lots sold in the adjoining garden sections to the number of lots affected. Thus, the court, after so averaging the total number of affected lots having used the unchallenged sales prices of $400 each for immediate need lots and $300 each for pre-need lots and having deducted the sales costs found the value to be $147.50 per lot. It determined the present value by further discounting from the total value of the affected lots ($147.50, the value of each affected lot, multiplied by the total number of such lots) the amount of 2% per annum on the amounts receivable each year in equal installments over a period of

40 years, which it determined to be the economic life of the cemetery as a whole.

In arriving at the value of the appropriated cemetery property, the trial court considered the methods used by the State's witnesses and the methods adopted by the witnesses called by the claimant. The court states the value at a different figure from that given by the experts. This is a finding of fact which we cannot disturb unless a rule of law was violated.

Speaking generally of methods of valuation, this court stated in Matter of City of New York, Fourth Ave., 255 N.Y. 25, 30, 173 N.E. 910, 911: 'The experts, as well as the judge, may have many different methods in arriving at the same point or at the value of the whole. These considerations are mere matters of evidence to prove facts. As long as competent evidence is received, and none excluded, no rule of law is violated, if the main purpose is served of ascertaining the value of the whole'.

The legal questions raised here, although simple in theory, at times have proven difficult of practical application to the circumstances in which they arise.

It is axiomatic that in appraising land the fundamental question to be answered is 'What has the owner lost? not, What has the taker gained?' (Boston Chamber of Commerce v. City of Boston, 1910, 217 U.S. 189, 195, 30 S.Ct. 459, 460, 54 L.Ed. 725), and that an owner whose property is acquired by condemnation is not limited in compensation to the use which he made of his property but is entitled to receive its market value 'based on the most advantageous use' (United States v. Miller, 317 U.S. 369, 375, 63 S.Ct. 276, 87 L.Ed. 336; Sparkill Realty Corp. v. State of New York, 254 App.Div. 78, 82, 4 N.Y.S.2d 679, 682, affirmed 279 N.Y. 656, 18 N.E.2d 301; Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236).

This, of course, does not mean that if the property by reason of its particular use is worth more for that particular use than any other, its market value will not be so measured. Where property has a higher value because of a restricted use than what might otherwise be the value of the highest and best use of property so situated, the value resulting from the restrictive use is, of course, the highest and best use of that property (Sanitary Dist. of Chicago v. Pittsburgh, Fort Wayne & Chicago Ry. Co., 216 Ill. 575, 75 N.E. 248; Pittsburgh & Western R. R. Co. v. Patterson, 107 Pa. 461; Matter of Port of New York Auth. (Lincoln Tunnel), 2 N.Y.2d 296, 140 N.E.2d 740; Mattydale Shopping Center v. State of New York, 303 N.Y. 974, 106 N.E.2d 59).

In United States v. 1 Acre of Land More or Less in Pulaski County, Virginia (W.D., Va., decided June, 1945, unreported, D. J. File No. 33-48, 228-4), where the United States condemned a private cemetery, the court valued the land for cemetery purposes. The court said: 'Even if we consider that, because private cemeteries are not commonly bought and sold, this property has no market value, or that its market value is impossible of ascertainment it does not follow that the compensation for it must be based on its adaptability for an entirely different use. * * * But the fact that there might be many more potential purchasers of the land for farm purposes and that a sale for such purposes is more readily negotiated does not require that it be value on that basis. The law does not limit market value to that based on the use for which land may be most readily and easily sold. Common knowledge might suggest that a purchaser desiring to continue the use of this property for a private cemetery would probably not be easily found but it is not impossible that there is such a market, nor is it impossible in view of the improvements on the lot, that a purchaser might be willing to pay for it a sum greatly in excess of that which it might bring if acquired for other purposes.'

Recognition of the unique value of cemetery property may be found in Fidelity Union Trust Co. v. Union Cemetery Ass'n, 104 N.J.Eq. 326, in Fidelity Union Trust Co. v. said 'land, when dedicated to the burial of the dead, acquires an unique value by the grace of its consecration and the exclusiveness of the cemetery franchise.' See, also, East Ridgelawn Cemetery v. Winne, 11 N.J. 459, 94 A.2d 833.

In the cases dealing with restricted uses which allow the land to be valued on the basis of surrounding lands, either no evidence was introduced valuing the land for purposes to which the property had been devoted, or such use had been abandoned or the property had not been developed and improved for the restricted use. Westchester County Park Comm. v. United States, 2 Cir., 1944, 143 F.2d 688, certiorari denied 1944, 323 U.S. 726, 65 S.Ct. 59, 89 L.Ed. 583 (park); Laureldale Cemetery Co. v. Reading Co., 303 Pa. 315, 154 A. 372 (cemetery); Matter of Board of Transp. of City of New...