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In re Bensel

Supreme Court of New York, Appellate Division

June 7, 1912

In the Matter of the Application and Petition of JOHN A. BENSEL and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate, etc., in the Towns of Yorktown and Newcastle, Westchester County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of THE CITY of NEW YORK, Appellant. (Catskill Aqueduct, Section No. 13.) LEVERETT H. BAKER, Petitioner, Respondent.

APPEAL by the City of New York from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of September, 1911, granting a peremptory writ of mandamus directing commissioners of appraisal in this proceeding to convene and hear certain testimony and to determine certain claims for damages.


I. J. Beaudrias [Archibald R. Watson with him on the brief], for the appellant.

Clinton T. Taylor, for the respondent.

Page 452


The proceeding now before us was instituted under the provisions of chapter 724 of the Laws of 1905, as amended, to acquire real estate for the Catskill aqueduct and appurtenances. Upon the petition of the city of New York the commissioners were duly appointed and qualified, and, upon the taking of the constitutional oath, the fee of parcel 929 on the map in this proceeding vested in the city of New York. Leverett H. Baker, the respondent herein, was the original owner of parcel No. 929, together with certain contiguous real estate, and in due time presented his claim to the commissioners for the damages caused by the taking of said parcel of real estate. He appeared from time to time and gave evidence of the value of the parcel taken, as well as of the damages to result to his contiguous real estate The commissioners, after hearing such testimony and viewing the premises, on the 25th day of August, 1910, made their first separate report, in which they awarded the sum of $12,000 to Leverett H. Baker for the taking of said parcel No. 929, and all damages occasioned to him thereby, in the following language: 'Twelve thousand dollars ($12,000) is the sum ascertained and determined by us as aforesaid to be paid to the owners of and persons interested in the said land for the taking of the fee designated on said map as Parcel No. 929, and in full satisfaction of all damage sustained or which may be sustained by them by reason of the acquisition, use or occupation for the purposes indicated in said act or the acts amendatory thereof of said fee and of all the other real estate laid down on said map.'

There is no question that all of the real estate owned by the respondent in connection with parcel No. 929, was indicated upon the map before the commissioners, and there is no question that they had full jurisdiction of the subject-matter and of the respondent. The report was subsequently confirmed by the Supreme Court by an order dated the 8th day of October, 1910, and on or about the 5th day of April, 1911, the comptroller of the city of New York paid the amount of said award, with interest to the date of payment, pursuant to the statute, to the said Leverett H. Baker, the respondent.

On or about the 6th day of January, 1911, claimant respondent

Page 453

presented a claim to the said commissioners for damages alleged to have been caused to land owned by him contiguous to parcel 929, and claimed to have been damaged by the construction and maintenance upon parcel 929 of the aqueduct and appurtenances. The commissioners refused to hear evidence upon the new claim upon the ground that the matter had been considered in the trial of parcel 929. On or about the 14th day of April, 1911, notice of motion of respondent's attorneys for a peremptory writ of mandamus directing the said commissioners to convene for the purpose of hearing the testimony respecting said claim, was served upon the corporation counsel of the city of New York, and on September 18, 1911, the order appealed from, dated April 29, 1911, was duly served. The particular claim is that a certain spring upon the respondent's premises contiguous to parcel 929 has been caused to dry up by reason of the construction and maintenance of the aqueduct, to the damage of the respondent's property. The city of New York appeals from this order.

The respondent admits upon this appeal that it 'is not to be denied that the general doctrine of the decisions in several States is that damages must be assessed once for all and that when once assessed according to law, they include all the injuries resulting from the particular appropriation and from the construction and operation of the works in a reasonable and proper manner for all time to come,' citing Lewis on Eminent Domain (3d ed.), section 819, but we are urged to adopt as the law of this State the theory which Mr. Lewis urges in section 820 of Lewis on Eminent Domain, to the effect that damages resulting from the construction of the public works should be left open for adjudication after the improvement has been made and put into operation, a rule which in practical operation would discourage investments, for the reason that it could never be known in advance the approximate cost of the work to be undertaken. It is, moreover, doubtful if the adoption of this rule would operate to the advantage of individual property owners, for the reason that it is usually much easier to get allowances for damages which are speculative in a condemnation proceeding than it is to establish the actual damages resulting from the construction and operation of an

Page 454

enterprise of a public character. However this may be, the courts of this State have laid down the rule that the principle upon which compensation is to be made to the owner of land taken by proceedings of this character is, first, that such owner is to receive the full value of the land taken; and, second, where only a part of the 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 the particular public work. (Newman v. Metropolitan El. R. Co., 118 N.Y. 618, 623.) In the later case of Bohm v. Metropolitan El. R. Co. (129 N.Y. 576) Judge PECKHAM says that 'as to the land remaining, the question has been to some extent mooted, whether the company should pay for the injury caused to such land by the mere taking of the other property, or whether, in case the proposed use of the property taken would depreciate the value of that which was not taken, such proposed use could be regarded and the depreciation arising therefrom be awarded as part of the consequential damages suffered from the taking. I think the latter is the true rule.' (South Buffalo R. Co. v. Kirkover, 176 N.Y. 301.)

This is what has been done in the case of the respondent; he has been before the commissioners, has introduced his evidence as to the value of the lands actually taken, and the damages to the lands not taken, including those damages which might result from the construction and maintenance of the aqueduct, and the determination of the commissioners upon this issue has been confirmed by the court, and the respondent has been paid for these damages. He now seeks, not to open up the whole question of his damages as they might be shown to exist after the construction of the aqueduct, but to compel the commissioners to take testimony as to a particular element of damages as to which he claims he has not been compensated. It seems to us that he cannot, while supporting the adjudication as it stands, demand that he shall be permitted to repudiate a part of it and to open the way to a new award for a particular item of damages. ...

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