Town of Pittsford v. Sweeney

• Decision Date: 30 March 1962
• Citation: 34 Misc.2d 436,228 N.Y.S.2d 518
• Parties: TOWN OF PITTSFORD, New York, Plaintiff, v. William J. SWEENEY, Defendant.
• Court: New York Supreme Court

Page 518

228 N.Y.S.2d 518

34 Misc.2d 436

TOWN OF PITTSFORD, New York, Plaintiff, v. William J. SWEENEY, Defendant.

Supreme Court, Monroe County.

March 30, 1962.

Philetus M. Chamberlain, Rochester, for plaintiff.

Harris, Beach, Keating, Wilcox, Dale & Linowitz, Rochester, for defendant, Sergeant W. Wise, Rochester, of counsel.

CHARLES LAMBIASE, Justice.

This is an application by the plaintiff for an order confirming the report of the Commissioners of Appraisal herein appointed to ascertain the compensation to be made to the defendant for the property taken by the plaintiff herein for public use as specified in the petition, which said report was filed in the office of the Clerk of the County of Monroe, New York on the 6th day of September, 1961, and for a final order herein and for such other and further relief as may be proper.

It appears that pursuant to the petition, and order of the court dated December 21, 1959, which order was entered December 31, 1959, the Town of Pittsford, New York condemned a perpetual sanitary sewer easement 20 feet in width and approximately 1150 feet in length over lands of the defendant, there appearing in reference thereto in the petition the following:

'That the property sought to be condemned for purpose of acquiring perpetual right-of-way easement and privileges is located in the Town of Pittsford, County of Monroe and State of New York'.

Then there follows a detailed description of the property by metes and bounds. And in paragraph 'THIRD' it is stated that:

'The public use for which the property is required is to enable sewerage to be carried through sewer pipes from adjacent proposed residential area along the line of the easement to connect into the main trunk sewer on East Street and to be carried from there to the sewage disposal plant. That the proposed easement and the pipes to be laid therein, is part of a master plan of sewage disposal heretofore previously ratified and approved by the Town Board. That the population of the territory in the immediate area of the proposed easement is increasing and the development of new homes in this particular area and to the south and east necessitates such a plan as the only efficient way of getting rid of effluent other than by septic tanks, the use of which is against established policy of the Town Board of the Town of Pittsford.'

In addition to the immediately foregoing, the petition sets forth and the order entered thereupon provides:

'* * * there shall be a temporary right and privilege during construction to enter upon and use the surface of an additional two strips of land, ten feet in width, adjacent to and on both sides of the above described permanent easement.' (Para. 'SECOND' in pertinent part).

Defendant's lands affected by the easements taken consist of 13 1/2 acres fronting on the west side of East Street and located entirely within a Residential 'A' Zone. The experts of the parties are in accord that the highest and best use of the affected parcel is for subdivision for development as residential property.

Defendant maintains that by virtue of the easements herein, both permanent and temporary, his lands are in effect encumbered by a 40-foot wide permanent easement, no part of which can be used by defendant or subsequent owners for any purposes inconsistent with the rights taken by the easements; that if he were to use any part of the 4o-foot strip for other than transitory purposes, he would be doing so at his own risk; and that he has, in fact, lost practically the complete use of said 40-foot strip particularly in view of the highest and best use of the parcel affected by the plaintiff's partial taking.

Defendant's contention is that neither the petition, nor the order herein, limits the period of construction during which the plaintiff may enter upon and use the surface of the additional strips allegedly taken on a temporary basis. He urges that under the temporary easement taken plaintiff has acquired the right and privilege to use the 10-foot temporary easement on either side of the permanent easement during any future constructions; that, except that it will be used for sewer purposes, the type and the extent of the construction contemplated by the petition has not been described in detail therein; and that plaintiff's attempt by testimony to establish that the temporary taking or privilege is for two years cannot alter the clear meaning of the petition and order which he construes as hereinbefore set forth.

Plaintiff, on the other hand, takes the position that a permanent sanitary sewer easement 20 feet in width and approximately 1150 feet in length has been acquired herein together with the temporary right and privilege to enter upon and to use an additional ten-foot strip on either side of the permanent taking, said temporary taking being, however, only for and during the period of the original sewer construction and for and during an additional period of one year from the date of the final acceptance by the plaintiff of the original sewer construction work, during which period of one year the contractor had the right to make any necessary repairs to the sewer; that the final acceptance of the work was on August 15, 1960; that the contractor, therefore, had until August 15, 1961; and that the temporary easement terminated on that date. It does not appear that at any time prior to the hearings before the Commissioners defendant had been notified of the alleged termination date of the so-called temporary easement.

The Town of Pittsford, New York, may make to the fullest extent such use of the appropriated parcels, both permanent and temporary, as it is authorized to make under the provisions of the taking. Spinner v. State of New York, 4 A.D.2d 987, 988, 167 N.Y.S.2d 731, 732; Dillenbeck v. State of New York, 193 Misc. 542, 83 N.Y.S.2d 308, affd. 275 App.Div. 871, 88 N.Y.S.2d 389; Robinson v . State of New York, 3 A.D.2d 326, 160 N.Y.S.2d 439; Morton v. State of New York, 8 A.D.2d 49, 185 N.Y.S.2d 321.

No right to use the land taken for the permanent easement appears to have been reserved to the defendant, the owner of such land, by the terms of the taking. Plaintiff concedes that: 'You can't build a house on it. You can't build a barn on it. Any permanent structure you couldn't build within the area of the 20 foot easement .' (S.M. 67) Assuming arguendo and for that purpose only that the language just quoted may be implied and that by implication there is reserved to the defendant owner the right and privilege of using his property, thus burdened with the permanent easement, provided the exercise of such right and privilege does not interfere with or prevent the user and rights condemned by the Town of Pittsford, New York, such right and privilege thus reserved to the defendant has only a nominal value. Matter of Water Commissioners, 96 N.Y. 351, 361; Dillenbeck v. State of New York, 193 Misc. 542, 83 N.Y.S.2d 308, affd. 275 App.Div. 871, 88 N.Y.S.2d 389, supra.

The report of the Commissioners awards to the defendant the sum of $4550.00 'for the real estate herein mentioned and referred to in the petition, and all his right, title and interest therein, and an additional sum of Three hundred and thirty dollars ($330.00) for crop damage, making a total award to the defendant of Four thousand, eight hundred and eighty dollars ($4,880.00) together with interest.' (Report dated August 15, 1961, page 2). Continuing, the report at page three states:

'We further report, that in determining the sum to be paid to the defendant herein as compensation for the taking of the lands and premises as hereinabove provided, we have awarded as compensation, the difference between the fair market value of the whole of the lands before taking, and the fair market value of what remains after the taking, together with all consequential damages resulting to the remaining lands, and that the award represents the entire loss and damage which the owner of the property affected has suffered'.

The nature and extent of the easements, both permanent and temporary, for which compensation is being awarded are not specified and described in the Commissioners' Report so that the extent of the burden of the servient estate can be ascertained and what rights, if any, are reserved to the owner of the fee as to each of the appropriations. Specifically, the report should make definite what rights, if any, are left to the defendant to use the covered surface of the appropriated easements for cultivation, the erection of structures thereon or for any other purpose; and in connection with the...