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Crance v. State

Supreme Court of New York, Appellate Division

November 10, 1954

ALBERT M. CRANCE et al., Appellants-Respondents,
v.
STATE OF NEW YORK, Respondent-Appellant. Claim No. 32176.

CROSS APPEALS from a judgment, entered April 27, 1954, upon a decision of the Court of Claims (SYLVESTER, J.), awarding claimants the sum of $10,000 and interest as consequential damages for the appropriation, in the course of the State's construction of an arterial highway, of their 'riparian rights' in Seneca Lake. Claimants appeal from the judgment as inadequate. The State appeals from the judgment as excessive and contrary to the law and the facts.

COUNSEL

Burns F. Barford, Sr., for appellants-respondents.

Nathaniel L. Goldstein, Attorney-General (Richard H. Shepp and Wendell P. Brown of counsel), for respondent-appellant.

Page 751

PIPER, J.

These are cross appeals from a judgment of the Court of Claims which awarded claimants $10,000 and interest from August 15, 1951. Claimants appeal from the judgment as inadequate; the State appeals on the ground that the judgment and the decision directing same are contrary to the law and facts and that the award is excessive.

Claimants own property known as 525-527 South Main Street, Geneva, N.Y. , bounded on the west by Main Street, on the east by Seneca Lake (according to their deed); their Main Street frontage being either 99 feet or 100 feet. Actually they have no Seneca Lake frontage as their predecessor in title in 1877 conveyed to the Geneva and Corning Railway Company a strip of land 66 feet in width 'partly above and partly below the waters of Seneca Lake' and a railroad embankment and tracks were constructed thereon and are now a part of the Pennsylvania division of the New York Central Railroad. There was reserved to the grantor and his heirs and assigns 'all the rights and privileges which he now has as grantee or riparian owner upon the shore of said lake and the lands under the water thereof, except as occupied by said company'.

Claimants purchased the premises in 1944 for the sum of $15,000. It is a three-story frame building, except there is a brick wall on the terrace level facing the lake. The terrace level, which is below the Main Street level, is used for doctors' offices. The rest of the house is used by claimants as a residence. Claimants made extensive repairs and improvements to the property. In 1944, and the early part of 1945, the offices were constructed and the kitchen moved at a cost of $8,000; the garage and driveway construction cost an additional $3,200. The walk and the steps leading from the street to the office entrance cost between $500 and $600. In 1950 a new heating system was installed at a cost of about $2,000. To the rear of claimant's house, the property slopes to the railroad right of way in a series of seven terraces.

The highway construction was commenced from the city line in 1948. The part which goes out in the lake was commenced in 1951. Hamilton Street (Routes 5 & 20) is to go under Main Street a few hundred feet south of claimants' property, then goes over the railroad tracks out in the lake and turns northeasterly and then northerly. When the highway embankment was first constructed there was about 500 feet of water between it and the railroad right of way. Later that was all filled in.

Thomas W. Coursey, the engineer having charge of this construction job testified: The elevation above sea level of Seneca

Page 752

Lake in back of claimants' property is 445 feet. The new highway when completed will be 50 feet above lake level. The space between the railroad right of way and the new embankment was filled in 2 or 3 feet above normal lake level. The elevation at Main Street is 537 feet and at the foot of the railroad embankment 448 feet. Prior to the filling in by the State, the railroad tracks were 7 feet above lake level. The water came up part way on the railroad embankment; the slope was 2 feet vertical to 1 foot horizontal.

Margaret B. Kraus, claimants' expert, testified the value of claimants' property in August, 1951, with 'the right of access to Seneca Lake in front of and abutting the premises * * * and access being over the tracks' of the railroad, was $45,000; and that it was worth now, without access to the lake $25,000. She would express no opinion as to the value of the property if the railroad were not there.

L. S. Appleby, the State's expert, testified the fair value of claimants' property in August, 1951, assuming they had riparian rights, was $36,500 and that the ...


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