#### Matter of the Mayor, etc., Relative to West Farms Road.

(Supreme Court, New York Special Term,

May, 1905.)

New York city — West Farms road — Street opening — Well on part „ of land taken — Owner used water for business purposes — New well as substitute — Burden of proof — Conditions under which analysis of water made — Change of grade — Change in position' of building — Building erected after change of grade — Different award to adjoining parcels of land — Public service corporations not subject to assessment for benefits.

Where upon a part of the land taken for street and sewer purposes there is a well fed by an underground stream which is available for another well, sunk upon a part of the land not taken for the street, and the question is whether the water from the new well is of such a quality as to be available for the peculiar uses of the land owner’s gas plant as a substitute for the water drawn from the old well, the owner claiming that the new well is so affected by the seepage of tide water as to render its use unprofitable, and eliminating comparative tests by analysis of the water drawn from both wells, there is a finding that the new one was an available substitute for the old, the burden of proof is upon the city to show that a new well would in fact be an available substitute for the well taken, and an award of damages to the mere cost of digging a new well at some place upon the owner’s remaining land rather than to the owner’s expense in the purchase of water from others, is erroneous.

Where water drawn from both wells and subjected to analysis was not shown to have been taken from the respective wells under similar tidal conditions, a refusal to make a finding based upon such evidence is correct.

In a proceeding to acquire land for street purposes no award of damages can be, made to an owner whose land is affected not by the change resulting from the grade of the new street but by grade changes of an intersecting street upon which the land abuts. '

A change in the position of a building upon another street to meet a change of grade therein after the grade of the new street was established, negatives the presence of damage and the motives of the owner, which induced the change of the building, are immaterial upon that question.

The owner of a building, erected upon the line of the street after a change of grade therein was established by the public authorities, is not entitled to an award of damages because of such change of grade.

*217Where it appears that the commissioners of estimate and assessment viewed two parcels of land and the record discloses nothing inconsistent with their conclusion that both were different in character, so far as the structural condition of the buildings in relation to the grade affected the question of damage which accrued to either, the court cannot say that the award as to one of the parcels is erroneous in principle, upon a claim that it is inadequate as compared with the award for the other and adjoining parcel.

The property of public service corporations, consisting of the equipment and fixtures, in the soil of the street within the area of assessment and used by them and the rights, privileges and franchises enjoyed by them and which have been availed of for the purpose of placing this kind of property in the street, is not the subject of assessment for benefit.

Motion to confirm report of commissioners of estimate and assessment and hearing upon objections to* said report.

John P. Dunn, for city and motion.

Berry Brothers, for Northern Union Gas Co., objector.

Melville Egleston, • for objector New York Telephone Company and another.

Adolph C. Hottenroth, for other objectors.

Bischoff, J.

The Northern Union Gas Company’s objection to the adequacy of the award for parcel No-. 60 is based upon the commissioners’ restriction of the allowance for the loss of a dug-out well, upon the part of the premises taken, to the cost of digging a new well on the remaining land, the claim being that the loss of the particular well involved a substantial loss in money. It appeared that this well was fed by an underground stream, and evidence was given that the same stream, was available for another well sunk upon the land not taken for the street opening, a test well having actually been made to determine the question. In answer to the owner’s contention that the proposed sewer to be laid in West Farms road would interrupt or divert the underground stream, it was testified that the *218proposed sewer could have no effect upon the stream, in view of its position in relation to the sewer level, and the actual issue was narrowed to- the question whether the Water from the new well was of such a quality as to be available for the peculiar uses of the gas plant as a substitute for the water drawn from the old well. The claim of the owner was that the new well, being nearer the Bronx river, was affected by the seepage of tide water and thus contained a proportion of salt which rendered its use unprofitable. The old well, however, was shown by the testimony to be affected, also, to some extent, by tide water, and it was testified that the water from the new well was of the same character as that drawn from the old, so far as could be determined by the sense of taste. Certain tests were made by analysis of the water drawn from both wells, but, because water thus examined was not shown to have been taken from the respective wells under similar tidal conditions, the commissioners declined to base a finding upon the evidence thus produced, and, so far, the ruling was correct, since, unless the conditions were known to be the same with relation to the tide which affected both wells, a comparative analysis which disclosed a greater percentage of salt in the water drawn from one could have no- value.

The result of eliminating the comparative tests, however, has been expressed in a finding that the new well was an available substitute for the old, and it is at this point that error was committed in placing the burden of proof.

There is no question that the gas company actually used the yield of the old well for the purposes of *its*business in the production of gas, and compensation for the talcing of the well involved the payment of such a sum as would meet the expense of obtaining the water without that well. To reduce the damages to the mere cost of digging a new well at some place upon the owner’s remaining land, rather than to be charged with the expense which would1 measure the owner’s loss in the purchase of water from others, the burden was obviously upon the city to show that a new well would in fact be a substitute for the old, in view of the legitimate uses to which it was put.

*219The relative position of the two wells, in their proximity to the tide water, which might affect both to some extent, disclosed a situation in which the similarity of quality of the water could be determined only by a chemical test, and the city’s burden of showing that a substitute for the old well was available was not sustained by the mere proof that the new well would supply water. The ‘owner proved its special damage, in the first instance, by showing the use of the well for its business, the taking by the city and the cost of obtaining water elsewhere in the usual course, and for the adoption of some lesser measure of damage, special to the case, through the finding that a substitute well was available, it became incumbent upon the city to prove the fact that there was an available substitute for the well which was taken. See Mattlage v. N. Y. El. R. Co., 14 Misc. Rep. 291, 294, and cases cited. Every facility for obtaining this proof was afforded the city by the party in possesssion of the land, and the commissioners’ conclusion against the owner as to the applicability of the usual measure of damage, in the absence of proof to support a different measure, was erroneous.

As to this parcel, therefore, the report must be sent back for further consideration.

I find no ground for disturbing the commissioners’ finding upon the question of damages for change of grade, as presented by the objections, with reference to parcels 35-B, 57-B, 20-A and 47-A.

The refusal to find damages for the two first-named parcels is supported by the fact that the premises were affected by grade changes of the intersecting street, upon which they respectively abutted, not, actually, by the change resulting from the grading of West Farms road, and there was, therefore, no necessary ground for concluding that any damage resulted from the intended regulation. See Matter of Trinity Ave., 81 App. Div. 218. Parcel 35-B had no frontage upon this road at all, such frontage as it might have had being taken in a prior proceeding to open Boone street, and damages for the change of grade related wholly to that proceeding,. with' which the present street opening *220had nothing to do. The claim as to parcel 57-B is covered by the ruling in Matter of Vyse Street, 80 App. Div. 622, the actual change in the position of the building to meet the change of grade of One Hundred and Seventy-third street, after the grade of West Farms road was established, sufficing to negative the presence of damage, and the motives which induced the change of .the building being immaterial to the actual question of damage.

Ooncededly, parcel 20-A falls within the rule which precludes a claim for damages where the building was erected after the change of grade was established by the public authorities, the objection being formally raised to- preserve the owner’s rights upon appeal. This question was considered by me in Matter of Vyse street, N. Y. L. J., June 9, 1904, and no further discussion is necessary at this time.

The claim of inadequacy in the award for parcel. 47-A is based upon a comparison with the award for an adjoining parcel, but, as to this, it is impossible to say from the record that an erroneous principle of estimate was adopted. It appears that the commissioners viewed the premises, and the record discloses nothing inconsistent with the- conclusion, based upon the view that the two parcels were different in character, so far as the structural condition of the buildings, in relation to the grade, affected the question of the damage which accrued to either. The court, therefore, is not in a position to say that the report, as to- this parcel, is erroneous in principle, or is the result of bias, passion or prejudice.

The remaining question presented upon the motion involves the propriety of assessments for benefit upon the interest of certain public service corporations in the soil of the streets within the area of assessment, the property thus assessed being the equipment and fixtures in the street, used by these corporations, and the rights, privileges and franchises enjoyed by them and which have been availed of for the purpose of placing this- kind of property in the street.

That property of this nature is not the subject of assessment for benefit has been recently decided by Mr. Justice Scott (Matter of Anthony Ave., 46 Misc. Rep. 525), and for the reasons expressed by him, with which I am in agreement, *221my conclusion is that the objections to the essessments in question should be sustained.

Eeport sent back to commissioners for further consideration as to award for damage parcel No. 60, and as to assessments for benefit as indicated. In other respects report confirmed.

Ordered accordingly.