Village of St. Johnsville v. Smith

This is a proceeding in behalf of an incorporated village to acquire certain lands and water rights of the appellant for the purpose of obtaining for the village an additional supply of pure and wholesome water. It was instituted in 1896, before chapter 181 of the Laws of 1875, entitled “An act to authorize the villages of the State of Hew York to furnish pure and wholesome water to the inhabitants thereof,” had been repealed by the Village Law (Chap. 414 of the Laws of 1897, taking effect July 1, 1897), and hence was regulated by the act of 1875 and the amendments thereof in force at the time, and by the provisions of the Condemnation Law (Code Civ. Proc. chap. XXIII). An answer to the petition was interposed by the appellant and others; the issues were referred to a referee, who determined them in favor of the petitioner; commissioners were appointed who awarded $500 to the appellant for the property and rights belonging to him which were sought to be acquired, and the report of the commissioners was confirmed at Special Term by a final order, which has been unanimously affirmed by the Appellate Division.

Upon this appeal a number of objections are made to the validity and regularity of the proceeding which we do not deem it necessary to discuss further than to say that we regard them as untenable, and we find no error in the record justifying the interference of this court, save in respect to the action of the commissioners in estimating the value of the property taken.

Neither the reservoir nor the piping nor any portion of the structures thus placed upon the premises of the appellant were taken into consideration by the commissioners in estimating the value of the land upon which they had been located. - The commissioners make this perfectly clear in their report where they expressly declare that in fixing the appellant’s compensation at $500 they do not make any allowance “ for the value of the pipe, the intake basin or the superstructure covering the same nor for any of the work or construction placed upon the appraised premises by the plaintiff, or for any enhanced value of the premises by reason of such construction having been placed thereon- by the plaintiff.”

It is conceded that the appellant forbade the entry upon his land; and the engineer who supervised the work for the village testified that he understood that whatever was done was done in opposition to the will of Mr. Smith. There is a statement in the brief for the respondent to the effect that “ apparently he subsequently consented,” but we can find no sufficient basis in the evidence for any such inference. In disposing of the appeal we think it must be treated as an established fact that the invasion of his property by the village was not only without the consent of the appellant, but against his express command and remonstrance.

Under these circumstances, we think that the landowner was entitled to have the value of the structures thus placed upon

The invasion of the appellant’s property was clearly tortious, the village and its agents being mere trespassers. (Matter of St. Lawrence & Adirondack R. R. Co., 133 N. Y. 270 .) It is true that a survey and map, as provided by section 5 of the statute (Chap. 181, Laws of 1875, as amended by chap. 211 of the Laws of 1885) had been made and filed prior to this entry, showing the appellant’s land and water rights which the board of water commissioners of the village intended to acquire; but the mere making and filing of this map did not empower the village authorities to take possession of the premises described therein and erect a water plant thereon. It was only after a determination by commissioners of appraisal fixing the compensation which ought justly to be made to the landowner, and after a confirmation of their report by the Supreme Court, and upon payment or deposit of the sum fixed as compensation that the village became entitled to take and hold the property. (Subd. 8 of section 6 of chap. 181 of the Laws of 1875, as amended by chap. 211 of the Laws of 1885.) The only entry which the statute authorized to be made before condemnation was “ for the purpose of making surveys and to agree with the owner ” as to the amount of compensation. (Chap. 181, Laws of 1875, § 4, as amended by chap. 211, Laws of 1885, as amended by chap. 383, Laws of 1895.) The entry and occupation here were obviously of a very different character, the appropriation of the premises to the uses of the village being as absolute and permanent as it could ever become upon the successful completion of condemnation proceedings, before any petition in such proceedings had even been verified.

The question which arises here lias twice been considered by the Supreme Court at General Term — first in Matter of Long Island R. R. Co. ( 6 Thomp. & Cook, 298 ) in the second

In the first of these cases the railroad company, before instituting proceedings to condemn, laid its tracks upon the appellant’s land. The appellant sought to prove before the commissioners that the entry was made without the owner’s consent and claimed compensation for the increased value created by the improvements which the railroad had made by laying its tracks upon the land. The court held that the commissioners erred in rejecting the evidence offered to establish the entry without consent and the value of the improvements made by the trespasser, saying“We are of opinion that the railroad company, if they entered without consent, were trespassers as to the then owner * * * and that any fixtures they placed on the land, while their occupation was that of trespassers, belong to the owner who is such at the time of making the valuation.” As to the method in which the damages were to be ascertained, the court added: “ In making such proof we do not understand that the value of each tie and rail is to be determined ; the railway track composed of rails and ties is a fixture of the land and its value as a fixture enhancing the value of the land for the beneficial enjoyment thereof is the measure of compensation.”

In thé second case cited the gist of the decision is contained in the following extract from the opinion of Mr. Justice Boabdmah : “ Any structure wrongfully placed upon the lands by the railway company became by that act a part of the land and entered into its value. The case tends to show that the railway company entered upon the lands in question without right or authority from the owners and built the road in part thereon. The property so put upon the land added to its value and was properly included in the appraisal as property of the landowners to be taken by the railroad company.”

We are of opinion that these cases were correctly decided and that the rule of law therein applied entitles the appellant in the case at bar to a new appraisal. This rule has been recognized and enforced by the courts of other states. The

In Graham v. Connersville, &c., R. R. Co. ( 36 Ind. 463 ) it was held that where a railroad company, without having acquired the right so to do, had in advance of condemnation proceedings entered upon the land subsequently sought to bcondemned and erected a depot and hotel thereon, these buildings became the property of the landowner and should have been included in estimating the value of the property when the damages were assessed. “If this rule seems to savor of hardship,” said the court, “ the company has no one to blame but itself for not having avoided its application.”

The doctrine thus asserted is stated by Mills in his well-known treatise on the Law of Eminent Domain as follows: “ A trespasser is not entitled to any benefit for improvements made on the land during the time of his occupation. Houses erected on the land of another belong to the owner, without

We are quite clear that it should not receive the sanction of the courts of this state. So far as actual intent is concerned, a personal trespasser who annexes a structure to another’s freehold does not mean that it shall become the property of the landowner any more than does a trespassing railway company or municipality which does the same thing

The difference is obvious between a clear case of trespass like that before us and a case in which after a lawful entry, followed by improvements upon the land, the occupant finds it necessary to institute condemnation proceedings by reason of a doubt as to the title or for the extinguishment of liens upon the property. “ It may be assumed as the law,” said Mr. Justice Cullen in Philadelphia, R. & N. E. R. R. Co. v. Bowman ( 23 App. Div. 170 ), “that where a railroad company lawfully enters into possession of premises and thereafter institutes condemnation proceedings to cure a defective title, or extinguish the lien of a mortgage or other incumbrances, the measure of compensation is not enhanced by the improvements placed by the railroad company on the land,” although he adds that even this proposition is not authoritatively settled in this state. But further on in the opinion the rule in this state, as in California, is declared to be that the improvements go to the landowner, where a railroad company has entered without his permission, as a mere trespasser; and the land

There is nothing in Matter of St. Lawrence & Adirondack R. R. Co. ( 66 Hun, 306 ), cited in the respondent’s brief, which affects the question under consideration. Section 3379 of the Code of Civil Procedure (which is a section in the Condemnation Law) provides that at any stage of a proceeding to condemn, the court may authorize the plaintiff, if in possession of the property sought to be condemned, to continue in possession upon giving such security or depositing such sum of money as the court may direct. The General Term in the case cited recognized the construction put upon that section by this court in Matter of St. Lawrence & Adirondack R. R. Co. ( 133 N. Y. 270 ), where it was held not to apply to a railroad company which had entered upon land under no claim or pretense" of right, in defiance of the will of the owner, under no mistake or misapprehension and without color of authority; and the General Term then proceeded to hold that possession was properly allowed to continue upon giving security under section 3379 where it appeared to the Special Term that the plaintiff had not acquired such possession by a trespass or without color of claim.

In holding, as we do, that the appellant is entitled to have the improvements made upon his land by the respondent while a trespasser taken into consideration in ascertaining his compensation, it must be distinctly understood that the measure of such compensation is neither the cost of the improvements nor their value or the value of their %ise to the village. The true inquiry is how much do the improvements placed upon the property enhance the value of the appellant’s land.

The orders of the Appellate Division and the Special Term should be reversed, with directions to appoint new commissioners of appraisal to determine the appellant’s compensation in accordance with this opinion, with costs in all courts to appellant.

Cullen, Oh. J., Gbay, Edward T. Babtlett, Haight and Vann, JJ., concur; Chase, J"., not sitting.

Ordered accordingly.