Beh v. State , 81 A.D.2d 744 ( 1981 )

— Judgment modified, and, as modified, affirmed, without costs, in accordance with the following memorandum: In 1953 claimant acquired approximately 80 ± acres of land located on both sides of New York State Route 104 in the Town of Webster, New York. Approximately one acre of improved land is located on the south side of the highway and the remainder lies north of the highway. Before the appropriation claimant had access to the northerly parcel from Route 104 and then by an uneven farm crossing over a railroad which runs parallel to the highway. Originally the northerly parcel was used for a dairy farm but shortly after claimant purchased the land he converted it to industrial uses in conjunction with his two businesses, digging and excavating and pumping septic tanks. In 1969 claimant purchased an additional 10 acres adjacent to the eastern border of the northern parcel and which extended to the Monroe-Wayne County Line Road. The Monroe-Wayne County Line Road intersects Route 104. Prior to the appropriation claimant had sold all but a 2.55 ± acre strip of this 10-acre residential property. The only improvements to the northerly parcel were six underground holding tanks used in the septic tank business and utility lines. In 1976 the State decided to expand Route 104 to a four-lane nonaccess highway and it appropriated .126 ± acres of land from claimant’s southerly parcel for that purpose. There was no direct taking from the northerly parcel, but a new access was required as a result of the reconstruction. To compensate for the loss of access, claimant built a gravel road, 1,400 feet in length, over the residential strip of land to the Monroe-Wayne County Line Road. Expert witnesses for both parties testified that before the taking the highest and best use of the northerly parcel was industrial. Claimant’s appraiser contended that after the taking the required change in access made the property less desirable to some prospective industrial users and therefore diminished its value. Nevertheless, he testified, as did the State’s appraiser, that the highest and best use of the northern parcel after the taking was industrial and the court so found. The State’s appraiser found no consequential damages to the 80-acre parcel. The trial court awarded claimant $75,000 for direct and consequential damages. The State contests only the award of $56,000 consequential damages to the northern parcel. The judgment should be modified by eliminating the award of consequential damages to the property north of Route 104. In making its award, the court granted claimant $7,000 cost-to-cure damages for constructing a new access road to the northerly parcel. Although it found that the highest and best use remained the same after the taking as before, the court also awarded consequential damages finding that the change in access diminished the value of the land. Whether this diminished value was compensable, however, depends on whether the remaining access was suitable or unsuitable to the highest and best use. Damages may not be awarded for a change which results in an access which is “merely circuitous” even though the value of the property is diminished thereby (see Priestly v State of New York, 23 NY2d 152, 155). The determination of suitability is a question of fact and notably the trial court here did not make a finding that claimant’s access was unsuitable. The evidence supports a finding that it was not unsuitable and therefore we modify by eliminating the consequential damages improperly awarded for circuity of access. All concur, except Hancock, Jr., and Moule, JJ., who dissent and vote to affirm the judgment in the following memorandum.