In re Newton — 45 N.Y. St. Rep. 18

Majority

p. 18

In the Matter of the Petition of John Newton, Com’r. In re Isaac Armstrong.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

1. Eminent domain—Awabd.

An award in procee lings to condemn land will not be set aside for alleged inadequacy unless the inadequacy be gross or palpable, or unless the

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commissioners proceeded upon an erroneous principle; nor will it be vacated for errors in the admission or rejection of testimony, unless such errors show an error of principle in estimating the damages.

2. Same—Evidence.

In a proceeding to condemn land used as a mill site evidence as to the amount of the business done „by the owner at the mill and the profits derived by him is irrelevant and is properly excluded.

Appeal by Isaac Armstrong from order - confirming report of commissioners of appraisal in proceedings to condemn lands for the new aqueduct.

Isaac Armstrong was the owner of Parcel No. 80 designated in this proceeding. The parcel in question consisted of 484-1000 of an acre of land located on the east branch of the Groton River, Upon the property were situated factory buildings used as a grist mill and a sash and blind factory, and also an icehouse, used by Mr. Armstrong in the conduct of an ice business. He also owned the right of flowing one-half of the river and pond above the dam, contiguous to the said premises. His ice was gathered from the mill-pond and river, of which he owned one-half, stored in his ice house upon his premises, and was delivered in proper season to persons at Brewster and vicinity, within one mile of the ice house.

Upon the proceedings before the commissioners, upon the application of the petitioner’s counsel, the commissioners refused to allow any evidence as to the profits made by the appellant in the running of his grist mill and the prosecution of his sash and blind factory. They also refused to allow any evidence as to the ice business conducted by him upon the premises condemned by the city of New York in this proceeding.

The commissioners made a report allowing as compensation for the property taken and injuries sustained the sum of $9,378.23.

Abram j. Miller, for app’lt; Wm. H. Ciarle, for resp’t.

This is an appeal from an order confirming an award of commissioners for lands acquired for the new aqueduct of the city of New York.

The difficulty of reviewing such an award is manifest, and has been so often recognized by judicial decisions that it is but necessary to state the general principles relating to such reviews without citing the authorities.

The award of commissioners will not be set aside for alleged inadequacy,, unless the inadequacy be gross or palpable, or unless the commissioners proceeded upon an erroneous principle, for the commissioners act not only upon the evidence before them but on their own knowledge and experience. Evidence is to guide, not control their judgment. Nor will the award be vacated for errors in the admission or rejection of testimony, unless such errors show an. error of principle in estimating the damages.

The whole of the landowner’s premises are taken by this proceeding. The sole question was, therefore, what was the value of the property ? The evidence as to such value is very conflicting. The testimony for the owner varied from $15,000 to $30,000;

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while that on behalf of the city placed the value at less than $7,000.

In this conflict of testimony the commissioners awarded the ■owner $9,378.23. After examining the evidence we cannot say that this award is erroneous or inadequate. The evidence for the ■city seems much more accurate and reliable than that of the landowner. The cost and value of the structure is given in detail. In fact the great variance in- the estimates of value recurs not as to the improvements, but as to the land and water privileges. This last the owner estimates at $15,000. He paid for it, however, ■some years before only the sum of $500. We do not see that any injustice has been done him.

On the hearing the owner sought to prove, as showing the value of the property, the amount of business done by him at the mill, and the profits derived by him. This was excluded, we think properly. The testimony did not properly tend to prove the value of the mill. The size and capacity of the mill and the extent. of the water of course were relevant. But an inquiry into the owner’s business involved other elements; the owner’s business skill, the price of labor, the absence'or presence of competition, which did not affect the value of the property. The same is true of the. ice business carried on-by him.

The question before the commissioners was the market value of the property; and to this question they rightfully confined the ■evidence.

The order appealed from should be affirmed, with costs.

Cullen, J., concurs.