Opinion
June 14, 1967
Appeal by the State from a judgment of the Court of Claims entered upon a decision which awarded damages for the appropriation of lands for highway purposes. The property, located in a rural area in Delaware County, consisted of approximately 69 acres, of which approximately 26 acres contained sand and gravel deposits. The appropriation was of 11.76 acres, which included 8.22 acres of the sand and gravel lands and 3.54 acres consisting of the homesite. The taking included the main house, a barn and two sheds. A tenant house and two sheds were not appropriated. The Court of Claims found that the highest and best available use prior to the appropriation was for sand and gravel deposit "reserves" for a sand and gravel plant on adjacent lands, in which claimants had no interest, and for residential purposes. The best use thereafter was not clearly specified. The court found a before value of $74,000 and an after value of $12,000 and found the resultant damages of $62,000 to consist of direct damages of $31,500 and consequential damages of $30,500 to the land and improvements not taken. Although the decision purportedly makes findings of market value, valuations of that nature were assigned by the parties' experts only to the land; the buildings were appraised on a cost basis, with no showing of any legal or factual basis for that method; and it follows that the findings are not supported by competent evidence. ( Guthmuller v. State of New York, 23 A.D.2d 597.) It seems rather clear that in arriving at land values the court gave undue weight to claimants' proof and theories of the enhancement thereof by the presence of sand and gravel deposits. These products were not of the highest quality and there were similar deposits in large quantities in lands of other owners over a wide area, these apparently exceeding greatly any likely demand for them. The court, however, found claimants' "property with its sand and gravel deposits had an additional value over and above like deposits in the area because is was adjacent to an operating plant and was under lease as a reserve supply for that plant." This "additional value" is quite evidently embraced in the direct and consequential damages found, inasmuch as the finding of after value was in the exact amount to which claimants' expert testified. The claimants' proof seems to us, however, to negate, or at the very least to weaken substantially, rather than to support this finding of additional value, as evidenced by the history of claimants' lease of the sand and gravel lands to the owner of the nearby plant referred to. The lease was for five years, was executed more than five years before the taking, and provided for royalty payments on material removed. The lessee removed nothing and, indeed, converted his plant to another use before the expiration of the lease. We need not detail the other inadequacies and deficiencies in the proof and in the decision. Judgment reversed, on the law and the facts, without costs, and a new trial ordered. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.