SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 20, 1968
NIAGARA MOHAWK POWER CORPORATION, RESPONDENT,
KATHERINE BAYLY ET AL., APPELLANTS
Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal by defendants from an order of confirmation and final order of the Supreme Court at Special Term which, among other things, confirmed the report of the Commissioners of Appraisal in consolidated condemnation actions. The sole issue tendered upon appeal is with respect to the finding that the highest and best use was "as a dairy farm with potential at some distant time for development purposes". Appellants contend: "The rejection by the Commissioners of defendants' theory of damages valuing the lands on a lot basis for residential purposes might well have been justified in view of the fact that no approved subdivision map had ever been filed. However, to disregard the value of this land for residential purposes based upon its value per acre and to relegate farm acreage value to the property is unconscionable and against the weight of the evidence." We find, on the contrary, that the Commissioners' conclusions are well supported by adequate evidence, including proof of such pertinent factors as the nature, location and physical advantages and deficiencies of the 282 acre tract from which parcels aggregating 15.054 acres, lying principally on the perimeter of the tract, were taken; the problems of access; the modest rate of growth, present and projected, of the community; the no more than moderate demand, if that, for property in the vicinity and the very considerable number of developed properties available to meet it. The values found were within the range of the testimony. The careful and well-reasoned report properly specifies and segregates the various parcels and items affected and the damage found with respect to each.
Order affirmed, without costs.
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