SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
May 15, 1969
DONALD V. VAN LIERE ET AL., RESPONDENTS,
STATE OF NEW YORK, APPELLANT
Appeal from judgment of Court of Claims in action for damages for permanent appropriation.
Del Vecchio, J. P., Marsh, Gabrielli, Bastow and Henry, JJ.
Memorandum: The State appeals from a judgment of the Court of Claims entered July 19, 1968 which awarded claimants $82,125 for the appropriation of 271.62 acres of unimproved land in Wayne County. The State correctly contends that since the trial court expressly disapproved the values assigned by claimant's appraiser, the judgment should be modified to reflect the values posted by the State's appraiser because the values adopted by the court find no support in the record. In reaching the award the court divided the parcel into three land categories and reached the following values: lake frontage, $6,000; "hardland", $48,000; marsh and woodland, $29,925. Although neither appraiser made a similar division of the land into these categories, the parties do not now question this approach and we adopt it. We must conclude, however, that there is no basis in the relevant market data submitted by the parties for a value of $500 per acre for "hardland" or $175 per acre for marsh and woodlands as found by the trial court; and, of course, it is fundamental that the court's view of the property cannot be a substitute for any lack of any relevant market data in the record. (McNitt v. State of New York, 24 A.D.2d 544.) Since the land classifications used by the appraisers differed from those used by the court, it was required to make an independent analysis of the comparable sales. Examination of these sales reveals a value of $280 per acre for "hardland" and $55 per acre for marsh and woodland. The record further reveals that both appraisers agreed that 30 acres of "hardland" would be suitable for development so as to have a value of $500 per acre. We therefore conclude that the record supports an award as follows: lake frontage, $6,000; 30 acres of "hardland" for development, $15,000; 66 acres of other "hardland", $18,200; and 171 acres of marsh and woodland, $9,200, or a total award of $48,600. The award should not be reduced to give a value for an interest in the property reserved by claimants' grantor since that interest was included by the appraisers in determining the value of the lake frontage. The findings of the Court of Claims should be modified as indicated above and the claimants awarded the sum of $48,600, together with appropriate interest.
Judgment unanimously modified on the law and the facts by reducing the award to $48,600 and as so modified, affirmed, without costs.
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