#### The Lehigh Valley Railway Company, Claimant, *v.*The State of New York.

(No. 9277.)

(State of New York, Court of Claims,

February, 1910.)

Eminent domain — Measure of compensation: In general — Where part of property is taken: Injury to property not taken.

A railroad company from which the States acquires lands by the right of eminent domain is entitled not only to the market value of the lands taken but to the depreciation of the company’s other, contiguous lands not taken, by reason thereof; and, in a ease where no question of benefits to the remaining property is involved, the damage may be ascertained either by proof of the market value of the land appropriated and of the damage sustained by the company to the rest of its lands or by proof of the value of the company’s property Before and after the taking.

Claim against the State for compensation for lands taken for the State canals.

Satterlee, Bissell, Taylor & French, for claimant.

Edward R. O’Malley, Attorney-General, for State.

Rodenbeck, J.

The claimant is a railroad corporation, owning terminal facilities in the city of Rochester on what is known as the *“*Island,” hounded hy the Genesee river on the west and the Erie canal and Erie Canal feeder on the east. The State has. appropriated about half an acre of land belonging to the claimant, fronting on Griffith street and the Erie canal. The property has a frontage on Griffith street of 97.25 feet, a width in the rear of 57.8 feet and extends hack about 298 feet. Adjoining this property on the west is a plot of ground upon which the passenger station of the claimant formerly stood. Griffith street is one of the main highway approaches to the island and crosses the Erie canal hy means of a bridge. The State owns property north of the appropriated land and desires to add this parcel to its holdings. The witnesses, on behalf of the claimant, placed

*433the valuation at from $12,600 to $15,000, and those for the State appraised it at from $3,000 to $4,000. The witnesses were asked to give the market value of the land appropriated. In this proceeding, however, the court must ascertain the compensation to which the claimant is entitled; and this compensation is not necessarily measured by the market value of the land actually taken. It may be true that land, quite as desirable for certain purposes, may be had for $3,000 or $4,000-; but there is an element of damage to the remainder of the property of the claimant which must be taken into account in estimating the compensation to which it is entitled under the Constitution. It is quite likely that a person desiring to purchase this property might not be willing to give much more than the estimate placed upon it by the State’s witnesses, but this market value must be supplemented by any damages that the remainder of the property of the claimant sustains. It is quite customary to ascertain the compensation in proceedings of this character by asking witnesses the value of the property before and after the appropriation, the difference being the amount of compensation. By this method witnesses may or may not offset benefits, which can only be determined upon cross-examination. In some cases these benefits may exceed the value of the land taken and the damages to the remainder of the property, in which case only a nominal award could be made. It has been held, however, that where benefits are involved the owner is entitled at least to the value of the property actually taken (Matter of City of New York, 190 N. Y. 360) ; and in such cases the above method for ascertaining the compensation may not be the correct one. Where benefits are involved, the better rule is to ascertain the value of the property taken, which amount at least must be allowed, and then determine the damages to the balance of the property, offsetting against these damages any benefits from the improvement. With respect to offsetting benefits against the damages to the balance of the property, Judge Cullen said, in the case above cited: *“*That benefits may not be set off against consequential damages to the part of the land not taken I do not assert. On the contrary, this *434would generally accomplish an equitable result (Newman v. Metropolitan El. R. Co., 118 N. Y. 618; Bohm v. Metropolitan El. R. Co., 129 id. 576), but this much we can hold, and I think we should hold, that in no case should an award be made for less than the value of the property actually taken by condemnation.” (p. 360.) In this case, however, no benefits from the taking of the land are involved; and, therefore, either rule might have been adopted. Upon the basis of either of the rules above considered, the claimant is entitled to the market value of the land actually taken and, in addition thereto, to the damages occasioned to the remainder of the property of which the appropriated land formed a part. Upon this basis the claimant is entitled to an award of $9,000, together with the expense of procuring abstracts of title, with interest from the date of the appropriation.

Judgment for claimant.