Wolfe v. State, 41115

• Decision Date: 06 June 1968
• Docket Number: No. 41115,41115
• Citation: 292 N.Y.S.2d 635,22 N.Y.2d 292,239 N.E.2d 517
• Parties: , 239 N.E.2d 517 Richard W. WOLFE, Appellant, v. STATE of New York, Respondent. Claim
• Court: New York Court of Appeals Court of Appeals

Page 635

292 N.Y.S.2d 635

22 N.Y.2d 292, 239 N.E.2d 517

Richard W. WOLFE, Appellant, v. STATE of New York, Respondent.

Claim No. 41115.

Court of Appeals of New York.

June 6, 1968.

Donald W. Kramer, Binghamton, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Jean M. Coon and Ruth Kessler Toch, Albany, of counsel), for respondent.

FULD, Chief Judge.

The claimant owned some 156 acres of land in the Town of Chenango. On the east of the property was Front Street, a main north-south highway, constituting for part of its length U.S. Route 11 and N.Y. Route 12. The only access to the claimant's land on Front Street was available through an area having a 51-foot frontage on that thoroughfare. The property also extended some 4,100 feet along Dorman Road, a county road running west from Front Street. However, for most of this distance, a deep ravine--at some places 80 feet deep and 200 feet wide--cut off access to the claimant's land on this Dorman frontage. In February of 1962, the State appropriated, for highway purposes (Highway Law, Consol.Laws, c. 25, § 30, subd. 6), .9 acres in fee and two permanent easements .7 acres in area. ¹ After reciting that the '(p)ermanent easements' were for the purpose of 'constructing, reconstructing and maintaining thereon drainage ditches and drainage structures together with appurtenances', the appropriation 'reserved' to the owner of the property--described as Parcels 605 and 700 where the permanent easements were located--'the right and privilege of using this property providing the exercise of such right and privilege does not, In the opinion of the Superintendent of Public Works, or other authorized representatives acting for the people of the State of New York or its assigns, interfere with or prevent the (State's) user in exercise of the rights hereinbefore described.'

Upon the trial in 1964, the claimant took the position that all reasonable means of access to his land had been appropriated and that the remainder had only a nominal residual value. Concededly, to bridge the ravine outside of the easement area involved building a structure whose cost would be prohibitive. The State, however, sought to introduce testimony that a bridge could be built across the permanent easement area taken by the State at a reasonable cost and that permission to do so would be granted by the Department of Public Works. The Court of Claims excluded this evidence on the ground that it was hearsay and that the State had at no time granted, or offered an instrument which would have granted, to the claimant 'in perpetuity the right of access across the permanent easement taken by the State.' The court, concluding that the appropriation deprived the claimant of all access to his property, awarded him damages of $71,100. ² On appeal, the Appellate Division, 23 A.D.2d 136, 259 N.Y.S.2d 13 found--and we cull from its opinion--that 'the claimant's sole existing means of access was, in fact, destroyed at the outset'. However, wrote the Appellate Division, '(i)f * * * the State is amenable to approving the building of a bridge across its drainage easement,' the award made 'would not be sustainable' and, based on this reasoning, reversed and remitted the matter to the trial court 'to afford the State the opportunity to stipulating * * * that a bridge of suitable size will be authorized and approved, with a right in perpetuity to the use thereof, or other suitable agreement'. '(O) therwise', the court pointed out, 'the award should remain in its present amount'.

Upon the retrial, the State, following the Appellate Division's suggestion, tendered a quitclaim deed and a stipulation that a bridge would be authorized and approved. The trial judge, nothing that he was constrained, despite his contrary opinion, to adopt the Appellate Division's view, awarded the claimant the sum of $60,713 as damages instead of $71,100 which he had granted upon the first trial.

From that judgment, 53 Misc.2d 14, 277 N.Y.S.2d 985, the claimant appeals directly to this court bringing before us, pursuant to CPLR 5601 (subd. (d)), the Appellate Division's intermediate order of reversal and remand. ³ Such an appeal permits review solely of the Appellate Division determination and, accordingly, we concern ourselves only with the question posed thereby, namely, whether the State may change the terms of the appropriation, or modify its original taking, by filing a correction map or adopting some other procedural device, so as to mitigate the consequences to the owner and reduce the compensable damages to be paid.

The answer to the question must be in the negative. The amount of damages to which the claimant is entitled as the result of an appropriation is to be measured and fixed as of the time of the taking. (See, e.g., Jackson v. State of New York, 213 N.Y. 34, 36, 106 N.E. 758; Kahlen v. State of New York, 223 N.Y. 383, 390, 119 N.E. 883, 885; Queensboro Farm Products, Inc. v. State of New York, 6 Misc.2d 445, 161 N.Y.S.2d 989, affd. 5 A.D.2d 967, 171 N.Y.S.2d 646, affd. 5 N.Y.2d 977, 184 N.Y.S.2d 844, 157 N.E.2d 719; Minesta Realty Co. v. State of New York, 26 A.D.2d 592, 272 N.Y.S.2d 121.) 'Once the land is actually taken,' the court wrote in the Kahlen case, 223 N.Y. 383, 390, 119 N.E. 883, supra, 'the owner cannot be compelled to take it back'.

It follows from this that the damages must be assessed on the basis of what the State has actually taken, whether or not it intends to use all of the property acquired. (See, e.g., Weber v. State of New York, 25 A.D.2d 584, 586, 267 N.Y.S.2d 152, 155.) In the present case, the permanent easements taken were defined in exceedingly broad terms and the provision reserving certain rights and privileges to the owner neither diminished the scope of those permanent easements nor rendered their description ambiguous. In so many words, the reservation in the appropriation left it to the Superintendent of Public Works (or some other authorized official) to say whether the 'right' which the owner may choose to exercise interfered with the easement acquired by the State. The simple fact is that the State had taken more than it actually needed for its purposes and, when it became apparent years later that it would have to pay for the rights which it had thus unnecessarily acquired, it was willing to return them to the owner by means of a stipulation and a quitclaim deed. As is manifest, the State sought, and the Appellate Division granted, not a clarification...