Citation Numbers: 47 Misc. 216, 95 N.Y.S. 894
Judges: Bischoff
Filed Date: 5/15/1905
Status: Precedential
Modified Date: 1/13/2023
The Northern Union Gas Company’s objection to the adequacy of the award for parcel No-. 60 is based upon the commissioners’ restriction of the allowance for the loss of a dug-out well, upon the part of the premises taken, to the cost of digging a new well on the remaining land, the claim being that the loss of the particular well involved a substantial loss in money. It appeared that this well was fed by an underground stream, and evidence was given that the same stream, was available for another well sunk upon the land not taken for the street opening, a test well having actually been made to determine the question. In answer to the owner’s contention that the proposed sewer to be laid in West Farms road would interrupt or divert the underground stream, it was testified that the
The result of eliminating the comparative tests, however, has been expressed in a finding that the new well was an available substitute for the old, and it is at this point that error was committed in placing the burden of proof.
There is no question that the gas company actually used the yield of the old well for the purposes of its business in the production of gas, and compensation for the talcing of the well involved the payment of such a sum as would meet the expense of obtaining the water without that well. To reduce the damages to the mere cost of digging a new well at some place upon the owner’s remaining land, rather than to be charged with the expense which would1 measure the owner’s loss in the purchase of water from others, the burden was obviously upon the city to show that a new well would in fact be a substitute for the old, in view of the legitimate uses to which it was put.
As to this parcel, therefore, the report must be sent back for further consideration.
I find no ground for disturbing the commissioners’ finding upon the question of damages for change of grade, as presented by the objections, with reference to parcels 35-B, 57-B, 20-A and 47-A.
The refusal to find damages for the two first-named parcels is supported by the fact that the premises were affected by grade changes of the intersecting street, upon which they respectively abutted, not, actually, by the change resulting from the grading of West Farms road, and there was, therefore, no necessary ground for concluding that any damage resulted from the intended regulation. See Matter of Trinity Ave., 81 App. Div. 218. Parcel 35-B had no frontage upon this road at all, such frontage as it might have had being taken in a prior proceeding to open Boone street, and damages for the change of grade related wholly to that proceeding,. with' which the present street opening
Ooncededly, parcel 20-A falls within the rule which precludes a claim for damages where the building was erected after the change of grade was established by the public authorities, the objection being formally raised to- preserve the owner’s rights upon appeal. This question was considered by me in Matter of Vyse street, N. Y. L. J., June 9, 1904, and no further discussion is necessary at this time.
The claim of inadequacy in the award for parcel. 47-A is based upon a comparison with the award for an adjoining parcel, but, as to this, it is impossible to say from the record that an erroneous principle of estimate was adopted. It appears that the commissioners viewed the premises, and the record discloses nothing inconsistent with the- conclusion, based upon the view that the two parcels were different in character, so far as the structural condition of the buildings, in relation to the grade, affected the question of the damage which accrued to either. The court, therefore, is not in a position to say that the report, as to- this parcel, is erroneous in principle, or is the result of bias, passion or prejudice.
The remaining question presented upon the motion involves the propriety of assessments for benefit upon the interest of certain public service corporations in the soil of the streets within the area of assessment, the property thus assessed being the equipment and fixtures in the street, used by these corporations, and the rights, privileges and franchises enjoyed by them and which have been availed of for the purpose of placing this- kind of property in the street.
That property of this nature is not the subject of assessment for benefit has been recently decided by Mr. Justice Scott (Matter of Anthony Ave., 46 Misc. Rep. 525), and for the reasons expressed by him, with which I am in agreement,
Eeport sent back to commissioners for further consideration as to award for damage parcel No. 60, and as to assessments for benefit as indicated. In other respects report confirmed.
Ordered accordingly.