#### The Waterford Electric Light, Heat & Power Company, Plaintiff, *v.*Kate E. Reed et al., Defendants.

(Supreme Court, Columbia Special Term,

June, 1905.)

Condemnation Law — Riparian owner’s right to river frontage is property — Insufficiency of award — Conveyance pending proceedings — Damages — Commissioners applied wrong principle in making award —Report set aside.

An award made in condemnation proceedings will ordinarily be sustained unless the commissioners have, clearly gone astray or adopted erroneous principles in the assessment of damages.

The right of a riparian owner of land adjoining the Hudson river to the entire river frontage west of the center of a public highway *407running through his farm and parallel to the river, is property independently of any intrinsic value of the land and where, as the result of condemnation proceedings, instituted by an electric light company to acquire such land, such right is not merely interfered with but the corporation will acquire absolute fee of all that portion of the farm between the center of the highway and the river without any reservations or qualifications, thereby cutting off all access to the river and to the use of its water for domestic or farm purposes and converting said farm from riverside to roadside property, an award of one hundred dollars to the owner for the destruction of such riparian right and the consequent impairment to the value of the farm is clearly insufficient.

The fact that pending the proceeding, the owner of the farm conveyed his interest in the strip of land in question, reserving only a right to go upon and cross the same for certain purposes specified in the deed, does not divest his interest in the question of damages, as presumably, the grantee took title with reference to' the estate to be acquired by the plaintiff in the condemnation proceeding as for the corresponding loss sustained by the grantor in the diminution of the purchase price, the plaintiff was liable to him and not to his grantee.

Where in such proceeding it was contended before the commissioners on behalf of the plaintiff that it was only acquiring the right of flowage in respect to the property, and that the defendant, by reason of his conveyance of the strip in questipn, had only a nominal interest in the question of damages, and on motion to confirm the commissioner’s report the court 'is satisfied that they adopted one or both of such erroneous theories, and thus necessarily applied a wrong principle in making their award of damages, their report should be set aside.

Motion by plaintiff to confirm tlie report of commissioners in condemnation proceedings.

Thomas O’Connor, for plaintiff.

Holmes, Bryan & Holmes, for defendants. .

Cochrane, J.

For the purpose of generating electricity for lighting the village of Waterford the plaintiff desires to construct a dam across the Hudson river from a point on the easterly side thereof in the town of Schaghticoke, Rensselaer county, to a point on the westerly side thereof in the town of Halfmoon, Saratoga county, and to acquire certain lands *408and rights and privileges adjoining the river on both sides thereof. It is for this purpose that the plaintiff seeks by this proceeding to acquire certain lands of the defendants.

The defendants are the owners of a farm of about seventy-five acres in the said town of Schaghticoke adjoining the Hudson river on the easterly side thereof. Parallel with the river extends a public highway. The center of the highway through the farm in question is at an average distance of sixty feet from the low-water mark of the river and the average distance to high-water mark is about ten feet less. The shore line of the farm along the river is 1,142 feet. From the highway to the river the bank slopes and consists of earth with rock underneath. It is not tillable. The farm house and buildings of defendants are on the easterly side of the highway, the house being about 125 feet from the river. There is running "water on the northerly part of the farm, but at a considerably greater distance from the buildings than is the river.

Py the judgment entered herein the plaintiff has condemned for its uses and purposes the absolute fee of all that portion .of the defendants’ farm between the center of the highway and the river. As the result of this proceeding the plaintiff will acquire not merely the right of flowage of the water of the river upon and against the land in question by reason of such water being set back by the construction of the dam aforesaid, but the plaintiff will acquire absolute title to the entire river frontage of the defendants’ farm west of the center of the highway thereby cutting off all access to the river and to the use of the water thereof for domestic or farm purposes and converting said farm from river side to road side property. This riparian right which is thus by this proceeding not merely interfered with but which is absolutely extinguished is property independently of any intrinsic value in the condemned land itself and is valuable in connection with the defendants’ farm. And this is true even if' it be assumed that the river at this point is a navigable stream. Rumsey v. New York & New England Railroad Co., 133 N. Y. *79.*For the destruction of this riparian right in the defendants and the consequent *409impairment in the value of their farm the commissioners have awarded the defendants the sum of $100. No argument is needed to demonstrate the insufficiency of this award.

Mindful of the high character and standing of the commissioners I have looked carefully into the evidence taken by them and proceedings had before them, and an examination of such evidence and proceedings convinces me .that they were under a misapprehension as to the effect of this proceeding on the farm in question, and that they have inadvertently adopted an erronequs principle in assessing the damages and that for such misapprehension and inadvertence the learned counsel for the plaintiff is in part at least responsible. Counsel for the plaintiff insisted before the commissioners as he also insists on this motion that the defendants will not be deprived of the fee of the land in question nor of the right of access to the river or the water thereof. This is clearly an error as above shown. There is no suggestion anywhere in the record preceding the judgment and culminating therein of any interest or right in the defendants’ property west of the highway less than an absolute fee which is to be' acquired herein. But on the contrary such record and judgment clearly indicate the ex-tinguishment of the defendants’ entire rights in such lands without any reservations or qualifications.

The estimates of depreciation to the defendants’ farm varied greatly ranging from about $4,000, according to the defendants’ witnesses, down to nothing, according to the plaintiff’s witnesses. As was said in Matter of New York, Lackawanna & Western Railway Company, 27 Hun, 151, “ this disagreement throws discredit on the value of such testimony. It is difficult to understand how witnesses, wdio had any knowledge on the subject and who v-ere competent to give opinions, could vary so widely. It would be wrong for us to assume that any qf these witnesses did not testify honestly. And it seems, therefore, necessary, in order to account for this very great discrepancy, to inquire whether there was not some element improperly brought into the estimate; some element which diverted the minds of the witnesses from the mere question, ‘ what is the fair market*410able value of the whole property, and theti what will be the fair marketable value of the property not taken.’ (Troy & Boston R. R. Co. v. Lee, 13 Barb. 169; Black River & M. R. R. Co. v. Barnard, 16 Sup. Ct. N. Y. (9 Hun) 104.)” Very likely the estimates of depreciation by the defendants’ witnesses were much too high, but that an erroneous method was pursued by the plaintiff on the question of damages is apparent from the questions asked of its witnesses. Such questions were like this. “Assuming that the plaintiff takes all the land lying between the ^center of the highway and the Hudson river for its uses and purposes, what would the remaining portion of the land be worth *%*” This question was intended to convey to the witnesses the idea that the plaintiff would acquire only the right of flowage in the premises in question and that the witnesses possessed such idea and were under a misapprehension in giving their testimony is very apparent from their cross-examination. Such questions constitute “ error of law in the proceedings before the commissioners ” which justify setting aside their report. Code Civ. Pro., § 3371; Matter of New York, Lackawanna & Western Railway Co., *supra.*In the latter case it was said at page 154, “ The true inquiry (as only a part of the defendant’s land - was taken) is that above pointed out; what is the fair marketable value of the whole; what is the fair marketable value of the property not taken ? If the questions had been limited with some strictness to those points, there would not perhaps have been the extraordinary variance of estimates.” These erroneous questions were pressed against the defendants’ objections and on the cross-examinations of the witnesses conducted with a view to showing that their minds had been diverted by an improper element embodied in the questions, counsel for plaintiff asserted as he did on other occasions that only the right to flow the land was taken or could be acquired. This was an erroneous theory. '

The learned counsel for the plaintiff further insisted before the commissioners as he also insists on this motion that the defendants had no longer any interest in the proceeding. This contention was based on the fact that pending the pro*411ceeding the defendants conveyed their interest to the strip of land in question reserving only their right to go upon and to cross the same for certain purposes specified in the conveyance. And the plaintiff argued from this fact that the defendants were no longer interested in the question of damages. This contention was also untenable. ETotice of pendency of the proceeding was filed and the grantee in such conveyance is bound by this proceeding. Code Civ. Pro., § 3381. Presumably when such grantee took title he did so with reference to the quality of the estate in the premises in question which would bé acquired by the plaintiff in this proceeding then pending and the defendants sustained a corresponding loss in the diminution in the purchase price of such premises. The liability of the plaintiff is to the defendants and not to their grantee.

Doubtless in a proceeding of this kind the commissioners may act on their own judgment disregarding oral testimony. Much latitude also is allowed them in the taking of testimony, the rules of evidence which obtain on the'trial of an action not being applied in all their strictness. Awards will ordinarily be sustained unless the commissioners have clearly gone astray or adopted erroneous principles. But the record here shows that the learned counsel for the plaintiff maintained two erroneous theories before the commissioners, viz., that the plaintiff was only acquiring the right of flowage in respect to the property in question and that the defendants by reason of the execution of a deed had lost all but a nominal interest in the question of damages. I am satisfied that the commissioners adopted one or both of such erroneous theories and if they did so they necessarily applied a wrong principle in making their award and by reason thereof the award is insufficient. When such is the case it is the duty of the court to set aside the report. § 3371, Code Civ. Pro.

Report of commissioners set aside] new commissioners may be appointed. — - .