Andrews v. State of New York

9 N.Y.2d 606 (1961)

John M. Andrews et al., Respondents, v. State of New York et al., Appellants. (Claim No. 34211.)

Court of Appeals of the State of New York.

Argued April 17, 1961.

Decided May 25, 1961.

Thomas F. Moore, Jr., for Power Authority of the State of New York, appellant.

Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for the State of New York, appellant.

George J. Skivington for respondents.

Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS and FOSTER concur; Judge BURKE dissents in a separate memorandum in which Judge FROESSEL concurs.

*607MEMORANDUM:

The trial court has found as a fact and the Appellate Division affirmed that the appropriation of the subject property for the construction of a power line was not contemplated *608 by the original project, which was enlarged to include that purpose only after the project was well under way. The valuation of the property for that purpose included an element of value enhanced by the existence of the original project, but under the ruling in United States v. Miller (317 U. S. 369) this is to be compensated where, as here, the project is subsequently enlarged by the construction of transmission lines, in which event the Miller case requires payment of the market price as enhanced by the factor of proximity to the public improvement. For this and other reasons stated in the opinions below, the judgment appealed from should be affirmed, with costs.

BURKE, J. (dissenting).

I dissent and vote to reverse and order a new trial on the ground that the award for the property which had been held for 50 years admittedly as a potential site for power transmission in connection with the development of a St. Lawrence River power project is erroneous. The award improperly included an element of damage based on the uses made possible only by the existence of the seaway and power projects, and thus this element of damage represented an enhancement in the value of the property occurring after, and the result of, the public determination to build the seaway and power project. (Cf. United States v. Miller, 317 U.S. 369; United States v. Chandler-Dunbar Co., 229 U.S. 53; United States v. Twin City Power Co., 350 U.S. 222; United States v. Grand Riv. Dam Auth., 363 U.S. 229; United States v. Virginia Elec. Co., 365 U.S. 624 [decided April 3, 1961].)

Judgment affirmed.