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MARION A. MUNRO v. STATE NEW YORK (10/22/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


October 22, 1968

MARION A. MUNRO, RESPONDENT,
v.
STATE OF NEW YORK, APPELLANT

Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.

Author: Herlihy

Appeal by the State from a judgment of the Count of Claims entered May 25, 1967, awarding damages to the claimant in the sum of $10,540, together with interest, for a highway appropriation. The claimant filed a cross appeal, but limited herself to seeking the affirmance of the judgment upon the hearing in this court. The sole contention of the State upon this appeal is that the court erred in relying upon actual lot sales to establish the value of the road frontage areas found by the court to have a value for sale as residential sites. The cases of Hewitt v. State of New York (18 A.D.2d 1128), Fort Amherst Realty Co. v. State of New York (27 A.D.2d 582), Golden Park Realty Corp. v. State of New York (28 A.D.2d 605) and Clearwater v. State of New York (28 A.D.2d 936), relied upon by the State, are not applicable to the present case. The court found the highest and best use of the property to be the same after the appropriation as before. Upon the record in the present case the court could find and apparently did find that certain frontage was available for sale and that there was a ready market without further development for use as homesites. Under such circumstances it is unnecessary to find a value for raw acreage and then an increment for potential value. There is nothing potential or enhanced about land which has a present value for a present use. The rule relating to lands having an enhanced value for potential uses does not apply to parcels of land having a present highest and best use with no enhanced value for some other potential higher and better use.

Disposition

 Judgment affirmed, without costs.

19681022

© 1998 VersusLaw Inc.



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