In re Board of Supervisors of Ulster County

215 A.D. 147

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 1926
• Status: Published

Opinion

Per Curiam.

That the parcel of land not taken has suffered great detriment since the opening of the highway upon the parcel which was condemned that such a highway might be opened, there can be no doubt. The damage resulted, however, not from the condemnation but from the fact that the traveling public have preferred to use the new highway strip and the connecting bridge over Rondout creek rather than the old highway strip and the connecting ferry of the respondents. It did not occur until the strip taken was put into use as a highway. It would have occurred, when that use became possible, whether the strip had been previously owned by the respondents or by other persons. What the respondents really complain of is a competing route which has deprived their ferry, previously an ■ almost exclusive means of crossing Rondout creek, of the patronage which formerly came to it. We do not think that consequential damages, based upon a diversion of travel from the ferry landing established on the lands not taken, were the proper subject of an award. No decisions in this jurisdiction, having a direct bearing upon the question involved, have been cited to us. Judge Cooley has said: “ The construction of a new way or the discontinuance of an old one may very seriously affect the value of adjacent property; the removal of a county or State capital will often reduce very largely the value of all the real estate of the place from whence it was removed; but in neither case can the parties whose interests would be injuriously affected, enjoin the act or claim compensation from the public.” (Cooley Const. Lim. [7th ed.] 548.) Corpus Juris says: “ Loss arising from the competition of the condemning party does not constitute an element of damage and the same is true of loss arising from increased competition on the part of others, growing out of the use to which the condemned land is to be put.” (20 C. J. 781.) We think that these statements correctly set forth the law which should be applied in this instance.

The order should be reversed, without costs, and the proceedings remitted to the commission for further action in accordance with this opinion.

All concur.

Final order reversed on the law, without costs to either party, and proceedings remitted to the same commission to take and, report a new appraisal in harmony with the opinion.