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COURT OF CLAIMS OF NEW YORK Claim No. 47204 1969.NY.40375 <>; 297 N.Y.S.2d 779; 59 Misc. 2d 49 February 7, 1969 TOWN OF PERU, CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Jerry, Lewis & Harvey (John Bell of counsel), for claimant. Louis J. Lefkowitz, Attorney-General (Carl Rosenbloom of counsel), for defendant. Henry W. Lengyel, J. Author: Lengyel

Henry W. Lengyel, J.

Author: Lengyel

 This is a claim for the appropriation of claimant's property pursuant to the Conservation Law of the State of New York. The subject lands were acquired by the State under the Park and Recreation Land Acquisition Bond Act, Project: Clinton 7.1, Town of Peru, Clinton County, New York, Map No. 6693. The appropriation map was filed in the Clinton County Clerk's office on October 29, 1965 and was served on the claimant on November 15, 1965. The claim was filed with the Clerk of the Court of Claims and served on the Attorney-General on September 29, 1966. It has not been assigned. We adopt the description of the appropriated property as shown on the map filed in the Clinton County Clerk's office, a copy of which was attached to the claim.

Claimant was the purported owner of subject property. There was no record of a deed or condemnation proceeding in the Clinton County Clerk's office which established claimant's title to subject property. Apparently, prior to 1927, the town road leading to the shore of Lake Champlain was located south of the appropriated property and ran through the premises of a Celia Sibley Wilson. In response to an offer from Mrs. Wilson to pay for a northerly relocation of said town road, and a petition of town residents requesting such relocation, the town determined to accomplish same. Mrs. Wilson paid the town $2,000 to relocate said road and dock, which was presumably completed in 1928-1929. Claimant also produced the deeds of owners, whose property abutted the relocated town road, which referred to the existence of said town road. After considering the aforesaid deeds, the minutes of the town meetings, the public use of the area as a road and dock, and claimant's maintenance and repair of the road and dock, we find that claimant established its title to the subject property. (See Highway Law, § 189; Smith v. Smythe, 197 N. Y. 457, 461, 462, and Stockwell v. Dunckel, 174 App. Div. 481, 483, 484.)

Said premises contained 0.41+- acres with 27.92+- feet frontage on the east side of Route 9 and 49+- feet frontage on the west shore of Lake Champlain. It extended approximately 561 feet from Route 9 to Lake Champlain. The roadway on said property was 12 feet wide with shoulders 3.5 feet to 4 feet wide and ditches for draninage purposes. In 1938, this was a gravel road surface. In 1941, a bituminous surface was placed on the highway by the Town Highway Superintendent and his work force. The road was maintained on an annual basis and in the same manner as other town roads. In the wintertime the road was plowed. It was used very substantially in the winter by ice fishermen and a farmer who resided on Valcour Island, which was due east of subject property. The dock was constructed of log cribbing, stone and concrete. It was built in about 1934 and was kept in fair repair thereafter. The last repairs were accomplished just before the appropriation in 1965. This work was done by eight young men under the supervision of the Town Highway Superintendent as part of the town youth program. The dock was constructed with its east end section angling to the south to provide wind protection. The main pier extended approximately 104 feet into Lake Champlain and the east end which angled to the south was approximately 27 feet long. There was a boat launching ramp at the southwest corner of the dock and a small graveled parking area.

Claimant had installed several signs at the west end of the roadway, approximately 5 to 6 feet east of Route 9, which stated, "Town of Peru Residents Only." In 1955-1957, the town board permitted a John Manley to moor a houseboat in the dock area. In return for said privilege, Mr. Manley apparently acted as a custodian of the facility. Other than said signs, there was apparently no control over the area in the winter months. Claimant did not offer in evidence any town ordinances relative to the use of said road and dock.

Claimant's appraiser valued subject property at $20,000 and found total direct damage of $20,000. The State's appraiser found a before value and total direct damage of $9,750. The State's primary position, however, was that claimant had not sustained a legally compensable damage as a result of the appropriation. Its appraisal testimony was offered solely as a safety measure to protect the State, if the court determined that claimant had sustained a legally compensable damage.

The State's legal position was predicated on section 3 of the General Municipal Law, which provided that: "Where property of a municipal corporation * * * is taken in the exercise of the power of eminent domain for a purpose substantially different from that for which it is held by such municipal corporation * * * just compensation to the municipal corporation * * * shall be made in the same manner, to the same extent and subject to the same limitations as though it were private property."

The appropriation herein was made under the Conservation Law and the State has made exactly the same use of the road and dock as was made of it by the Town of Peru, except that the State has refurbished and improved said roadway and dock area. The State contends that, as the appropriated property was not taken for a substantially different purpose, said statute must be followed and compensation may not be legally awarded to the claimant. (See Governor's Memorandum approving L. 1960, ch. 180, N. Y. Legis. Ann. 1960, pp. 471-472; Memoranda of State Attorney-General, p. 202.)

The claimant, however, takes the position that said statute applies solely to property of a municipal corporation held in a governmental capacity and does not apply to such property when held in a proprietary capacity.

Prior to the enactment of said statute, the constitutional provision against the taking of private property for public use without just compensation was applicable to property held by a municipal corporation in a proprietary capacity. (See N. Y. Const., art. I, § 7, subd. [a]; People ex rel. Palmer v. Travis, 223 N. Y. 150, 166; City of Little Falls v. State of New York, 266 App. Div. 87, 91, 92, affd. without opn. 291 N. Y. 755; City of Schenectady v. State of New York, 6 Misc. 2d 232, 234, app. dsmd. 9 A.D.2d 851; 1 Nichols, Eminent Domain [3d ed.], § 2.225, subd. [1]; 1 Orgel, Valuation Under Eminent Domain, § 42; 26 Am. Jur. 2d, Eminent Domain, § 179.) It was stated in County of Herkimer v. Village of Herkimer (251 App. Div. 126, 128, affd. 279 N. Y. 560):

"A municipal corporation possesses two kinds of power: (1) Governmental and public; (2) proprietary and private. In the exercise of the former the corporation is a municipal government, while as to the latter it is a corporate legal individual. [Citing cases.]

"It is said by Nelson, Ch. J., in Bailey v. Mayor, etc., of New York, (3 Hill, 531), that municipal corporations 'in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers, and dealt with accordingly.'

"The distinction between ownership * * * for public or governmental purposes, and for purely private or commercial ends, has long been recognized and observed."

In our opinion, the State's construction of section 3 of the General Municipal Law clearly deprives a municipality of its constitutional right to just compensation when municipal property held in a proprietary capacity is appropriated by the State and put to a substantially similar use. If we adopted said construction, we would, therefore, be constrained to strike down said statute on the grounds that it conflicted with the State Constitution. (See McKinney's Cons. Laws of N. Y., Book 1, Statutes, § 150.) However, such is not necessary, as we agree with and adopt the claimant's ...

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