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center of the channel of the river. The lots vary in width along the avenue and river from 30 to 70 feet, and in depth from 63 to 100 feet, approximately. The front of the lots at the avenue line is about 25 to 30 feet higher than their rear at the easterly side of the channel of the river. Some 10 feet from the front line of the lots they descend quite sharply towards the margin of the channel. The channel itself is some 3 feet in depth and 25 feet in width. The land lying westerly of the channel for some 200 feet or 300 feet in width is low, and frequently flooded by the river in times of freshet. At approximately the northern part of these lots, taking them together, the river makes a sharp bend for some 200 feet, or thereabouts, to the east, and then follows along the rear of these lots, and then trends less sharply back to the west.

The plaintiff, having obtained due authority from the Public Service Commission and otherwise, is engaged in the improvement of straightening its tracks through the city of Mt. Vernon, and as a part of such improvement is about to change its tracks to a line some 300 feet westerly of its present location and the locality herein involved, and as a part of such improvement, and by the requirement of such commission, it is to make a new channel for the Bronx river along a line west of the new line of its railroad, which will straighten the river by taking out the loop above mentioned, and will necessarily divert the waters of the river from the rear of these parcels. The commissioners have awarded to the owner of each parcel, as damages for such diversion, a sum amounting to $22.50 for each running foot of the width of such lot, the awards being as follows: Parcel No. 1. Width, 49 feet.

.Award, $1,102 50 Parcel No. 2.

1,417 50 Parcel No. 3.

50

1,125 00 Parcel No. 4..

45

1,012 50 Parcel No. 5.

1,012 50 Parcel No. 6.

1,012 50 Parcel No. 7.

30

675 00 Parcel No. 8.

787 50 Parcel No. 9.

70

1,575 00

45
45

66

35

Each lot is now used for residential purposes, having a dwelling house upon it.

It is claimed in behalf of the defendants that, while the lots are now used for residential purposes, they are not located in a desirable residential part of the city, and that their best and real value is in their availability for use for manufacturing purposes. From their situation as detailed in the evidence, and as is well known, it would seem that this view of the matter is reasonable, except for the size of the individual lots. It must be a matter of common knowledge that each of them is too small to be available, generally speaking, for a factory site, and only two of them are held by the same owner or owners. Moreover, there is at present a substantial dwelling house upon each lot, so that it may be said that, as far as he could, the owner has fixed the character of the lot as residential. It is manifest that the houses could not advantageously be converted into separate factories, and that, therefore, they have little value for that purpose.

available for factory sites, have any greater market value for or because of that availability than as merely residential property. Upon the former basis the value of the buildings must be substantially, or at least to a material extent, discarded, while upon the latter such value can be fully considered. The commissioners had to value the property as it then was. They could not reasonably fix the naked land value as that of factory sites, and also the value of the buildings as for residential purposes. The two bases were entirely inconsistent.

The highest value of the naked land given in the evidence—that is, by the defendants' experts—is upon the basis of $1,500 for a frontage of 25 feet along the avenue, with an average depth of 100 feet. Assuming that the commissioners viewed the property as approximately being of that average depth, they allowed as damages more than one-third of the full value of the land, aside from the buildings. There is nothing in the evidence, except the naked opinion of the experts, which indicates that the easement taken could have constituted any such proportion of the land value. The opinion of an expert in such a case is to be valued according to the reasons which he may give in support of it, when questioned upon cross-examination. Such test, applied to such witnesses, revealed nothing substantial to support their conclusions. It brought forth no evidence that the market value of such lots in such locality had ever been materially enhanced by the fact that they abutted upon the river. The proofs clearly established, and, indeed, it is a matter of common knowledge, that the waters of the Bronx river at Mt. Vernon have long since ceased to be potable, .and that they are now unfit for domestic purposes. It may be true that no right has yet been secured on the part of the territory higher, up the stream to so pollute such waters, and that the time may come when they will again be in a condition fit for domestic use. It therefore may be that the commissioners were warranted in considering their value for such uses.

It is manifest that for manufacturing purposes the use of those waters as appurtenant to these lots, or any of them, could never be applied to constitute a water power; e. g., by the erection of a dam and the accumulation of a head of water. The only use of the waters for manufacturing purposes suggested by the proofs, or which can be supposed, is by pumping the water into a factory and using it for the production of steam or other purposes, not directly as a means of producing power. It does not seem to me at all possible that any such use of the water could be anything like so large an element in the value of the land. The claim of the defendants' experts that the deprivation of such use could affect the value of the buildings, aside from the value of the land, is utterly unreasonable. Evidently such latter claim was not at all accepted by the commissioners, as, if it had been, their awards could not have been upon the uniform ratio of $22.50 per each foot of frontage.

It does not seem possible that the value of the use of the water, whether for domestic or manufacturing purposes, whatever its condition, as an appurtenant easement to the several lots, could or be dependent solely upon the number of feet frontage of the lots

vary with

upon the river. It is plain that for manufacturing purposes each parcel, even the widest, is small; and the use of the water, namely, the capacity for drawing it from the river for such a factory, would not be at all, or certainly not entirely, dependent upon the width of the river frontage. As residential property the right to use the water for domestic purposes with the dwelling house existing upon one of the narrower parcels may be as valuable as with the dwelling house situated upon the widest parcel.

The only theory suggested by the proofs, or by my own reflections, upon which the awards could properly have been made upon the basis of a uniform allowance for each running foot of river frontage, is that the damage to the different lots from the loss of the easements is measured by the cost of filling in the rear of such lots. The record shows that before the commissioners the defendants claimed that the damage to any one of the lots as a residential lot, from taking away the easements, would be represented by the cost of building retaining walls around the rear of the lot-i. e., at the center line of the channel, the very rear of each lot—and along the sides of the lower portion of the rear, and filling up the lot inside of such walls so high that the surface water from the rear of the filled-up lot would drain easterly into the avenue. The cost of sạch walls and such filling in for parcel No. 1 was by such proofs shown to be the sum of $8,696.55, which was several times as much as the highest value of the land given by any witness. Such a suggestion as a measure of damages is evidently absurd, and the evidence in support of it was clearly incompetent and should not have been received. It, however, was not objected to in behalf of plaintiff.

It is to be said in support of the report of the commissioners that it awarded only about one-eighth of this preposterous sum. Under no possible view could it ever be necessary to do any such filling in, or in any way to change the natural grade of the land, which is, of course, strongly to the west or rear. The conformation of the land, as shown by the testimony and as is well known, is such that the natural drainage of these parcels of land is and must be to the west into the present river channel, or, if that be removed, to the low lands there lying. The assumption, which seems to pervade the evidence given for the defendants, that the present channel of the river, after the diversion of its waters, will not be open to the drainage of these lots as nature has intended it, appears to be absolutely unwarranted. The plans of the railroad company contemplate the proper culvert in their new structures, to permit the water which the present channel will receive to pass off, and no doubt, whether they intended making such provision or not, they will be compelled to do so.

The consideration of such feature of those plans does not fall within the prohibition contained in section 3370 of the Code of Civil Procedure against making “any allowance or deduction on account of any real or supposed benefits, which the owners may derive from the public use for which the property is to be taken or the construction of any proposed improvement connected with such public use,” because the exist

be required, it can only be at the most to maintain the grade of the land to the rear through the old channel, by filling up the portion of such channel between the present margin and the center to the grade of the rear of the lot at such margin, which portion may be left by the diversion of the waters. The evidence does not show that the expense of such filling in could amount to anything like the awards, and plainly it could not.

It is clear that the experts of the defendants based their valuations upon an entirely erroneous theory, and it seems equally clear to me that the commissioners must either have adopted an erroneous theory or else have made palpably excessive awards.

The report, therefore, must be set aside, and the matter referred back to the same commissioners for rehearing.

PEOPLE ex rel. THOMPSON v. BELDEN et al., Highway Com'rs of Town

of Ft. Ann.

(Supreme Court, Appellate Division, Third Department. May 5, 1909.) 1. HIGHWAYS ($ 77*)-DISCONTINUANCE-VACATION OF ORDER-GROUNDS.

An order of the highway commissioners discontinuing a highway pur. suant to Highway Law (Laws 1890, p. 1192, c. 568) Š 80, as amended by Laws 1897, p. 86, c. 204, § 1, and Laws 1904, p. 985, c. 387, § 1, will not be vacated simply because the discontinuance changes the route from the complaining party's place of residence to his other lands, and requires him to travel a shortly lengthened distance.

[Ed. Note.-For other cases, see Highways, Dec. Dig. § 77.*] 2. HIGHWAYS ($ 77*)—DISCONTINUANCE-VACATION OF ORDER.

An order of the highway commissioners discontinuing a highway as having become useless pursuant to Highway Law (Laws 1890, p. 1192, c. 568) $ 80, as amended by Laws 1897, p. 86, c. 204, § 1, and Laws 1904, p. 983, c. 387, 8 1, will be vacated where one of the three commissioners who owned land on each side of the highway, on the discontinuance of which the absolute title would revert to him, applied for the discontinuance, and took part with the other commissioners in determining that the highway was useless.

Ed. Note.-For other cases, see Highways, Dec. Dig. § 77.*]

Certiorari by the People, on the relation of Israel Thompson, commanding Orin J. Belden and others, as highway commissioners of the town of Ft. Ann, to return their proceedings in the discontinuance of a certain highway in that town. Order discontinuing highway vacated.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and. SEWELL, JJ.

Frank D. Morehouse, for relator.
Robert O. Bascom, for respondents.

CHESTER, J. The proceeding is one under section 80 of the highway laws (Laws 1890, p. 1192, c. 568), as amended by Laws 1897, p. 86, c. 204, § 1, and Laws 1904, p. 985, c. 387, § 1. That section pro*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

116 N.Y.S.-59

vides that the commissioners of highways of a town may, “upon written application and with the written consent of the town board, make an order

discontinuing a highway which has become useless since it was laid out, in their town, upon filing and recording in the town clerk's office, with such application, consent and order, a release from all damages from the owners of the lands taken or affected thereby.”. The highway in question is about 18 rods in length, and is described in the return as the base of a triangle approximately 360 feet in length. The relator is a resident of the town, and liable to be assessed for highway labor therein. His house is located near one end of the portion of the highway ordered to be discontinued, and he owns land at the other end of such highway, and, if the highway is discontinued, it increases the distance between his house and such lands by the highway around the other sides of such triangle by about 143 feet. He claims in the petition that his lands abut on said highway on the easterly side thereof, and that he is greatly affected, injured, and damaged by the discontinuance of such highway. In the return it is denied in one place on information and belief, and in another place absolutely, that he is such abutting owner. Whether he is such abutting owner or not appears to depend upon whether the northerly boundary of the part discontinued is where a fence has been erected at right angles crossing it, or whether it is defined by a line running at an obtuse angle from its westerly side at the northerly end parallel with the other side of the remaining highway. In the one case he would have about 20 feet fronting upon the discontinued highway, and in the other his lands would corner at the point of discontinuance. If he was the owner of lands abutting on the highway or affected by the discontinuance, the discontinuance could not have been made without his filing a release to the town from all damages by reason of the discontinuance. This he has not done, and he claims that he had no notice of the proceedings until after the order of discontinuance was made. We think it is not essential to determine this question, because the order must be reversed for another reason hereinafter stated. We do not agree, however, that the order should be reversed simply because the discontinuance changes the route from the relator's place of residence to his lands, and requires him to travel a shortly lengthened distance in going from one point to the other, because that reason might be assigned by any person who travels on the highway going in either direction, and might prevent in many cases the discontinuance of a highway when in the opinion of the town board and the commissioners of highways sufficient and substantial reasons existed therefor.

The real trouble with this case arises from a matter of more serious nature. The applicant for the discontinuance was one of the three highway commissioners of the town. He owns land on both sides of the highway which he asks to be discontinued. On discontinuance the easement of the public over his lands for highway purposes ceases, and the absolute title reverts to him. He not only asks that the highway be discontinued as useless, but he has taken part with

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