National Fuel Gas Supply Corp. v. Anger , 149 A.D.2d 951 ( 1989 )

— Judgment unanimously modified on the law and as modified affirmed with costs to appellant, in accordance with the following memorandum: We agree with the trial court’s finding that condemnee failed to establish by competent evidence that the gas located on condemnee’s property was commercially recoverable (Iroquois Gas Corp. v Gernatt, 50 Mise 2d 1028, affd 28 AD2d 811, affd 22 NY2d 694). We disagree, however, with the trial court’s determination that condemnee is not entitled to recover rental fees. Condemnor’s assistant manager of land recovery téstified that, as a matter of policy, condemnor paid $2 per acre per year rental for storage rights. This constituted an admission and as such should have been considered as proof of rental value. Because there is no other competent evidence of value in the record, the court should have found an annual rental value of $2 per acre. (Resubmission of appeal from judgment of Supreme Court, Erie County, Kane, J. — condemnation.) Present—Doerr, J. P., Denman, Boomer, Pine and Lawton, JJ.