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DIOCESE BUFFALO v. STATE NEW YORK (04/10/69)

COURT OF APPEALS OF NEW YORK


decided: April 10, 1969.

DIOCESE OF BUFFALO, NEW YORK, RESPONDENT-APPELLANT,
v.
STATE OF NEW YORK, APPELLANT-RESPONDENT; BUFFALO BURIAL PARK ASSOCIATION, RESPONDENT-APPELLANT, V. STATE OF NEW YORK, APPELLANT-RESPONDENT; ST. STANISLAUS ROMAN CATHOLIC CHURCH SOCIETY, RESPONDENT-APPELLANT, V. STATE OF NEW YORK, APPELLANT-RESPONDENT

Diocese of Buffalo v. State of New York, Judges Bergan, Breitel and Jasen concur with Chief Judge Fuld; Judge Burke dissents and votes to affirm in an opinion in which Judges Scillepi and Keating concur. Judges Bergan, Breitel and Jasen concur with Chief Judge Fuld; Judge Burke dissents and votes to modify in an opinion in which Judges Scileppi and Keating concur.

Author: Fuld

 In each of these three condemnation proceedings, we are called primarily upon to decide the method to be employed in computing a claimant's damages where there has been a partial taking of cemetery lands. Since this question of law is applicable to all three appeals, it may be helpful to discuss it before undertaking a more detailed consideration of each of the several appeals themselves.

It is settled that, as a general proposition, the measure of damages in partial taking cases is the difference between the value of the whole before the taking and the value of the remainder after the taking. (See Matter of City of New York [ Fourth Ave.], 255 N. Y. 25; see, also, 1 Orgel, Valuation Under Eminent Domain [2d ed.], § 64, p. 290 et seq.) Consequently, the decision on each of these appeals turns on whether that rule should have been applied in these cemetery cases.

Our decision in St. Agnes Cemetery v. State of New York (3 N.Y.2d 37) pointed the method of valuing cemetery lands in condemnation proceedings. (See, also, Diocese of Buffalo v. State of New York, 18 N.Y.2d 41; Mount Hope Cemetery Assn. v. State of New York, 10 N.Y.2d 752.) After first observing that these lands were to be appraised on the basis of their value for their highest and best use -- in that case, for continued cemetery use -- the court went on to hold that such value is to be ascertained by first arriving at a probable sale price of the land as cemetery plots or graves, based on the "average" price which the cemetery obtained for the sale of burial plots located in adjoining sections (3 N.Y.2d, at p. 40). After the cost of making such future sales is deducted, an estimate is made of the number of years it would take to sell off all the plots in the cemetery as it existed prior to the condemnation. The amount of net income expected annually over the projected number of years is treated as if it were an annuity whose present value, determined by reference to annuity tables, is regarded as the fair market value of the cemetery's undeveloped grave sites. In other words, the value of the land is equivalent to the present worth of future net income to be derived from the steady sale of a continuously diminishing inventory of cemetery plots, year by year, until the supply of land is depleted.

On the appeals before us, the claimants as well as the State accept the formula adopted in St. Agnes as the method to be followed in determining the valuation of a cemetery. More, the State acknowledges that the courts below correctly applied that formula to find the value of the entire area of unsold plots or graves before the taking. However, contends the State, the courts below erred in failing to use the formula in order to ascertain the value of the property retained by the claimants after such taking; indeed, they made no attempt whatsoever to find that vitally significant figure, the value of the land retained after the taking. Instead of employing the "before and after" measure of damages rule, the trial court averaged the value of all the unsold graves before the taking -- according to the St. Agnes formula -- and, then, simply multiplied the average unit plot value by the number of unsold plots which had been taken in condemnation.

The departure from the "before and after" rule resulted in error. The court's decision in the St. Agnes case was premised on the dual assumption that cemetery land is valuable as an inventory of individual grave sites which may properly be treated as fungible and that sales will continue at a constant rate until they are all sold. On this premise, any particular undeveloped cemetery plot could be substituted for any other, and the only direct effect of a partial taking is to reduce the economic life of a cemetery. In other words, since the sales will presumably continue at the same rate, the condemnation taking will merely decrease the period of time during which the supply will be available. This economic assumption -- that the only effect of a partial taking is to reduce the economic life of the cemetery -- underlies the "before and after" approach urged by the State, a contention which relates to the measure of damages in these cases. This particular question, critical to decision herein, was not raised by the parties nor considered by the court in St. Agnes. In that case and in the others which followed it, we were concerned only with the method of valuation, not with the measure of damages. No reason exists for not applying the "before and after" rule in cases involving a partial taking of cemetery lands. What the owner has lost is, after all, the ultimate measure of damages. (See, e.g., Rose v. State of New York, 24 N.Y.2d 80, 87; St. Agnes Cemetery v. State of New York, 3 N.Y.2d 37, 41, supra ; Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195.) In the main, uncomplicated by any claim or issue of consequential damages or benefits to the retained property (but see discussion in Buffalo Park case, infra, pp. 328-329), the only effect of the taking has been to reduce the size of each cemetery, just as would a street widening, if the cemeteries had fronted on city streets. The remaining property still retains its essential characteristics after the taking, is still just as useful for cemetery purposes, as it was before the taking.

This being so, there is no reason why the St. Agnes method of valuation should not be used to determine the value of the retained land after the taking in precisely the same way as it was used by the courts below to determine the value of the entire cemetery before the taking. Indeed, our decision in Matter of City of New York (Fourth Ave.) (255 N. Y. 25, supra) furnishes strong authority for this conclusion. In that case, the claimant owned an entire square block (then undeveloped) in Manhattan, from Park (Fourth) to Lexington Avenue and from 32nd to 33rd Streets. The city took a 20-foot strip along the entire Park Avenue frontage for a widening of that thoroughfare. The court rejected the claimant's contention -- very similar to that made by the cemeteries on these appeals -- that it should look solely to the land taken (the Park Avenue frontage), viewed as an independent parcel, as the measure of the award to be made. Instead, it recognized that, in reality, the claimant still had a square block fronting on Park Avenue and that it was damaged only to the extent that the block was 20 feet shorter from east to west.

Just as in the Fourth Avenue case, so in the cases before us, we can only make our determination on the basis of a realistic view of what the claimant lost, and that was to be measured by valuing the property retained by the claimant after the taking. In the Diocese of Buffalo case, for example, the only effect of the taking was to reduce that claimant's supply of unsold graves from 65,450 to 61,950. So visualized and regarded, the measure of damages should be, to quote from our opinion in the Fourth Avenue case (255 N. Y. 25, 29, supra), "the difference between the fair market value of the whole before the taking and the fair market value of what remains."

There is, of course, a difference between the methods of valuation in a cemetery case and a case such as Fourth Avenue. Cemetery land is to be valued -- St. Agnes teaches -- by reference to a projected annual net income from sales over a period of years while in the other case the land is to be appraised by using the more common method of estimating square foot or unit lot values by reference to sales of neighboring and similar property. The distinction should not, however, affect the conclusion that the damages are to be measured by considering the impact of the appropriation on the property retained by the claimant. Since, as already indicated, the only effect of a partial taking of a cemetery is to shorten its economic life, a claimant -- to borrow the figures from the Diocese of Buffalo case -- who sells 1,190 graves a year and who has lost 3,500 grave sites is in the same economic situation as a person left with an annuity smaller by three years.

A leading manual, dealing with partial taking cases, describes the "before and after" method as "decidedly the best one in all cases". (McMichael's Appraising Manual [4th ed.], pp. 442-443.) The author emphasizes -- what is, indeed, self-evident where the highest and best use of the property has not been affected by the taking -- that the "before and after" method "involves two calculations" and that both calculations (i.e., appraisals) must be made by identical methods. The courts below, having used the St. Agnes formula to determine the "before" values, should likewise have made "after" value determinations and, of course, in doing so, would have been required to employ the same method. Their failure to do so resulted in error, the extent of which will become evident when we approximate the findings which would result from application of the correct rule in each of the cases to which we now turn and compare them with the findings actually made.

Diocese of Buffalo v. State

In this case, the Court of Claims found that it would have taken 55 years to sell off the grave sites as the cemetery stood before the taking. The claimant owned 65,450 grave sites which would have been sold at the rate of 1,190 a year. And, since the parcel taken involved 3,500 graves, the effect of the appropriation was simply to reduce the life of the annuity by three years, the length of time during which they would have been sold. The court found the "before" value -- i.e., the value of the income from the sale of 1,190 plots a year over a 55-year period -- to be $1,870,462.33 but made no finding as to the "after" value -- i.e., the value of the income from the annual sale of those 1,190 plots over a period of 52 years -- and there must, therefore, be a new trial.*fn1

The court made an award of $100,030; it arrived at this figure by (1) taking the "before" value of the entire property -- $1,870,462 for the 65,450 graves -- (2) finding the average value of each grave to be $28.58 and, then, (3) multiplying that figure by the total number of graves appropriated, 3,500. Quite obviously, if, as the State maintains, the value of the property retained after the appropriation is $1,855,354.77 (see n. 1, supra), an award of $100,030 for the land taken would leave the claimant with property worth their combined sum -- $1,955,384 -- an amount far in excess of $1,870,462 which the trial court found to be the value of its property before the taking. Simply put, the "averaging" procedure adopted below resulted in a windfall to the claimant.

There was a flaw in the reasoning of the courts below which led to such a result. The present value of a grave site depends, to a great extent, on the time when it will be sold. Thus, in this particular case, plots which were to be sold immediately were found to be worth over $130 each, while those which would not yield any income for 55 years were only worth about $5. The figure used by the Court of Claims -- $28.58 per grave -- represented an "average value" which would apply only to those graves sold toward the middle of the cemetery's life. However, as we have already stated, the claimant's sales will presumably continue at an undiminished rate of 1,190 a year throughout its

[24 N.Y.2d 320 Page 328]

    --> life, in consequence of which the claimant will experience no loss until 52 years have elapsed and it is forced to terminate its sales three years earlier than had there been no condemnation. It is only the value of the sales lost during the period at the very end of the cemetery's existence, rather than an "average" figure, which properly reflects the damage resulting from the taking.

Before bringing our discussion of the Diocese of Buffalo case to a conclusion, it is necessary to treat another issue, one raised by the claimant as cross appellant -- namely, that the 6% discount rate employed in arriving at the present value of the annuity calculations was too high. We need but observe that, since this determination is based upon factual considerations, relating to "prudent" investments, which have support in the evidence, it is conclusive upon us, beyond the scope of our review.

Buffalo Burial Park Association v. State

The claimant in this case lost, as a result of the State's appropriation, some 30,405 out of a total of 82,907 available grave sites. In fixing its award for the taking, the Court of Claims made no attempt to find the value of the 52,502 plots which remained in the claimant's possession after the taking. Instead, it adopted the same methodology employed in the Diocese of Buffalo case. It found the present value of the entire parcel before the taking ($817,895.70) -- by means of the St. Agnes method -- and reduced it to an "average" value per grave ($9.865). This "averaging" procedure, having no relation to the actual loss suffered by the claimant, resulted in a valuation of the graves taken at $299,945, and the award was based on this figure.*fn2

If the court had used the St. Agnes method, employed to find the "before" value of the parcel, to ascertain the present worth of the 52,502 plots which the cemetery retained after the taking, it would, according to the figures provided by the State, have found that the cemetery still had grave sites worth $797,835.99. If this is added to the $11,770 found to be the value of land still retained by the claimant but no longer available for cemetery use (see n. 2, supra), the value of the claimant's holdings after the taking would be $809,605.99. This, then, would indicate that the entire loss suffered by the claimant as a result of the appropriation of its grave sites was no more than $8,289.71.*fn3

However, it may be that the actual loss suffered by this claimant should not be measured by the St. Agnes formula. That formula is based upon the assumption that highest value of the land is for subdivision and future sale as cemetery plots but, when a parcel is extremely large, in relation to its annual rate of sale, that assumption no longer holds true. The reason for this may be seen from the present case where, prior to the taking, the cemetery owned so much land that, if it continued its annual sales rate of 1,081 graves a year, some of its property would yield no income for 88 years. The present value of income so long deferred is small indeed and the owner would be better off, economically, if it were to apply a portion of its land to other uses. The State, recognizing this, suggests -- and we believe fairly and correctly -- that the land should be appraised for noncemetery purposes. According to the State's own computations, the result of such an appraisal would be to fix the value of the land before the taking at $883,500 rather than the $817,895 derived from use of the St. Agnes formula. This higher "before" value would, of course, result in a substantial increase to the claimant's award. Indeed, even according to the State's own computations, the claimant would be entitled to compensation -- exclusive of special damages -- of at least $127,770.*fn4

In addition to other damages, it is our view that Buffalo Park is also entitled to compensation for the loss of 5,000 pine trees which it had planted for nursery purposes in 1954 in an undeveloped section of its cemetery. Such an allowance would not result in any inconsistency since the use of the land for nursery purposes did not affect its value either for cemetery purposes

[24 N.Y.2d 320 Page 330]

    --> or any other use. The nursery was to serve only a temporary function. The trees, set out in regular nursery farm rows, were to be transplanted to various other points in the cemetery from time to time, as needed, and, as they were removed, the land on which they had stood would be as valuable for grave sites or, indeed, for any other use as it would have been if the trees were never planted. Nor would an allowance for these trees result in any duplication of damages, since the nursery trees, unlike the trees already planted in the cemetery proper, were not included by any of the witnesses in the computation of the value of the land appropriated. Since ascribing a separate value to the nursery trees would involve neither duplication of awards nor improper aggregation of inconsistent values, the parties may, on the retrial, introduce evidence of value of those destroyed by the taking as an additional item of damage.

St. Stanislaus Roman Catholic Church Society v. State

The Court of Claims adopted the same methodology in this case as it employed in the two already discussed. Although it correctly applied the St. Agnes formula in valuing the entire parcel before the taking, it failed to ascertain the worth of the land retained by the claimant after the appropriation. As we have already noted, the method followed by the court -- multiplying the number of graves lost by the "average value" per grave -- does not reflect, realistically, the actual loss to the claimant resulting from the condemnation.*fn5

The State does not challenge the additional amounts awarded for the items of shrubbery and a new road totaling $38,500. It does, however, take issue with the further award of $20,097 for temporary easements, taken by the State to provide work areas for the exhumation of human remains, general work areas and detours. The State's own appraiser, however, made an allowance for this item of damage and, in our judgment, it was properly included by the courts below.

In sum, then, there must be a reversal and a new trial in each of these cases. The Court of Claims failed to consider the value of the land which remained in the ownership of the claimant after the taking and, in so doing, rendered awards which were far in excess of the claimants' actual loss. Upon the new trials, it will be incumbent on the court to make awards solely on the basis of the difference between the value of the claimants' property before and after the taking plus such special damages as may be shown to be appropriate in the individual case.

The order appealed from in each case should be reversed, and the matter remanded to the Court of Claims for further proceedings in accordance with this opinion.

Disposition

In Diocese of Buffalo v. State : Order reversed, without costs, and case remitted to the Court of Claims for further proceedings in accordance with the opinion herein. In Buffalo Burial Park Association v. State : Order reversed, without costs, and case remitted to the Court of Claims for further proceedings in accordance with the opinion herein. In St. Stanislaus Roman Catholic Church Society v. State : Order reversed, without costs, and case remitted to the Court of Claims for further proceedings in accordance with the opinion herein.

Burke, J. (dissenting). In this case, here by permission of this court, the claimants, Diocese of Buffalo and St. Stanislaus, have been denied just compensation.

When the State takes land for a public purpose, the owner of the taken land is indeed entitled to be compensated for what he has actually lost in economic terms. The majority today concludes that an established cemetery which, as has been found by the trial court and the Appellate Division, is currently selling burial plots for over $130 each is entitled to be paid only about $5 each for those plots which it loses by reason of the taking. By applying the approach which this court has followed since our decision in the St. Agnes case (3 N.Y.2d 37; see, also, Diocese of Buffalo v. State of New York, 18 N.Y.2d 41; Mount Hope Cemetery Assn. v. State of New York, 11 A.D.2d 303, affd. 10 N.Y.2d 752) the claimant would be entitled to be paid approximately $28 for each burial plot lost due to the taking. (The companion cases involve takings in which the comparative figures are equally striking: graves selling for about $140 each would be compensated at a mere $13 or $9 each.) This obvious disparity results from the majority's incongruous application of inconsistent approaches to the question of valuation for a partial taking. The incongruity lies in the fact that the St. Agnes approach, as heretofore applied in this court in each case in which it was presented, attempted to take into account the unique fact that cemetery real property is sold, over the course of time, in fungible units and, therefore, the award should reflect a discount, designed to approximate the effects of deferred realization of income, based upon past annual sales and sales prices. The Fourth Avenue approach relied upon by the majority is of course the traditional approach employed in the ordinary case of a partial taking. What the majority does is wed the usual with the unusual and produce by that union what can only be termed a bizzare offspring. The St. Agnes approach, in an attempt to arrive at a method of valuation which is fair to both condemnor and condemnee, seeks to approximate the economic effects of the taking by use of averages of past sales and sale prices but it does not in any way purport to produce a mathematically precise award for the very good reason that the very process of projecting the past into the future is itself imprecise (will the population served by the particular cemetery increase or decrease? will the death rate increase, decrease or remain fairly constant? will competition increase? will cremation replace burial? and, most importantly, will prices continue to increase at an annual rate of close to 4% as is shown by the evidence of one of the claimants?). In the face of this uncertainty, the approach adopted sought to balance the competing facets of these uncertainties by use of averages and a discount which would closely approximate the loss to the condemnee. That approach is now discarded without any discussion of the uncertainties which the discarded approach at least attempted to meet and deal with, and it does so by use of a method which, if used as the case relied upon by the majority used it, would result in an award in excess of $100,000 instead of the award of some $15,000 which results from the majority's approach. For instance, the majority states that, because the burial plot units are fungible, there is no way of telling when any particular area would be used and that, therefore, the average discounted price used below would reflect the expected earnings from sales in the middle years of the cemetery's life. The implication is that this results in an excessive award to the claimant. What the majority does not recognize is that, by its approach, it decides that the taken plots would necessarily be the last ones to be sold and, therefore, awards only the discounted value of the expected income flow for the last years of the cemetery's life lost due to the taking. The approach heretofore followed recognized that it could not be determined whether the taken plots would have been sold first, last or somewhere in between and, therefore, in fairness both to the State and to the claimant, chose the via media which, in effect, "split the difference" between the two extremes. Thus, at the same time that the majority deplores the idea of a "windfall" to the claimant by use of this average, it summarily and incongruously endorses a "windfall" for the State by use of its arbitrary determination that the taken plots should be considered as those which would necessarily be sold last. Even more incongruous is the majority's conclusion that the cemetery land taken from the Buffalo Burial Park Association should not be valued as cemetery land because its owner would be "better off" using it for other purposes. The majority reaches this conclusion in spite of the elementary proposition that findings of fact affirmed by the Appellate Division are beyond review in this court if there is evidence to support them. (Cohen and Karger, Powers of the New York Court of Appeals, § 111; Matter of City of New York [ Fifth Ave. Coach Lines ], 22 N.Y.2d 613, 620; Kingsland v. Erie County Agric. Soc., 298 N. Y. 409.) It appears that a useful life of some 88 years indicates as a matter of law that the highest and best use of the property is other than for cemetery purposes, whereas useful lives of some 55 and 42 years do not so indicate and this is asserted even in spite of the fact that both the claimant and the State tried the claim in the Court of Claims on the theory that the highest and best use was for cemetery purposes (an entirely reasonable theory in light of the fact that the property was concededly bought and held by the claimant for no other purpose but cemetery purposes). Needless to say, even motives of fairness (though not readily apparent in the dispositions as to the other two claimants) cannot serve to supply a justification for the

majority's abandoning its own newly announced method of determining damages for the partial taking of an established cemetery as to only one of the three claimants involved in the very opinion in which that new method is announced. The apparent generosity of the assertion that the other two claimants are also " privileged " to show a highest and best use other than for cemetery purposes could better be evaluated had the majority completed the parenthetical to read "if they can" (which they cannot). (Opn., p. 329, n. 4.) Throughout

    --> the course of this litigation, the parties, including the State (until the cases reached this court), recognized that there was no doubt that the highest and best use of the property taken from each of the claimants was as cemetery property and no reason is now presented why any "privilege" should be accorded to any of the claimants to assert otherwise upon a new trial. It can, however, be inferred that this meaningless gesture is due to a recognition that the

awards which will result from a faithful application of the majority's new "rule" will be shockingly less than "just" compensation. Suffice it to say that decisions affecting the justness of the compensation awarded to a property owner for property lost due to condemnation should be made on the basis of an analysis which is more thorough and perceptive than that employed by the majority in these companion cases and no better demonstration of that proposition could be found than is reflected in the wholly inadequate awards which will represent upon the remission of the present claims to the Court of Claims. It is difficult to understand why Buffalo Burial Park Association is arbitrarily presented with the right to a new trial upon a theory first advanced by the State in this court, while the Diocese of Buffalo and St. Stanislaus are confined to the clearly inadequate compensation which will result from today's decision. If the Diocese and St. Stanislaus were to be compensated according to the method set forth in the Fourth Avenue case, it is clear that the Diocese would be entitled to an award of approximately $455,000, whereas the majority's approach would result in an award of $15,000 and the St. Agnes approach, prior to its strained merger with the ordinary before and after method, would result in an award of $100,000. Similarly, St. Stanislaus would be entitled to an award of some $1,747,000, whereas the majority's approach results in an award of only $173,000 and the St. Agnes approach, prior to these cases, would result in an award of $495,000. In each case, the application of the Fourth Avenue rule is simple: find the present value of the whole prior to the taking (multiply the number of grave sites prior to the taking by the average selling price which was found as a fact and affirmed by the Appellate Division) and, from that figure, subtract the value of the property remaining (multiply the number of grave sites remaining by the average selling price). On the other hand, the discounting and averaging features in the St. Agnes case which take the place of the after value utilized in the Fourth Avenue case is equally simple while at the same time taking into account the deferred realization of income inherent in the cemetery's operation. The majority, however, devises a combination of these two which inflates the discount (in effect, duplicating it by using the "after" value on top of it) so as to drastically reduce the awards below what are clearly levels which reflect just compensation for what has actually been taken. That the method devised is extreme is clear from a mere glance at the figures resulting from the application of each of the approaches and the inadequacy of the awards which will result from today's decision amply demonstrates the soundness of the now-discarded St. Agnes approach. I would merely add that I agree that Buffalo Burial Park is entitled to compensation for the pine trees which it had planted for nursery purposes and which were lost by reason of the taking which is the subject of this litigation. Accordingly, I must dissent and vote to affirm the order of the Appellate Division in each case, except as modified with respect to Buffalo Burial Park's claim for the trees.


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