Alton Fitzgerald v. State New York Et Al‪.‬

[9 A.D.2d 486 Page 487] Appeal by the State and by the State Power Authority from a judgment of the Court of Claims which awarded claimant compensation
for the appropriation of his lands for purposes of the Authority; and cross appeal by claimant on the ground of the inadequacy
of the award. The facts are stated in the comprehensive opinion of the trial court. (10 Misc. 2d 1046.) On this record, it
was error to give effect to "some enhancement" in the value of claimant's lands occurring after the United States became committed
to the seaway project in the St. Lawrence River, upon the finding that claimant "could not at any time have definitely known
that his land would have been included in any navigation or power development project". As authority, the court cited United
States v. Miller (317 U.S. 369) in which, however, the rule is stated (at p. 377) as follows: "The question then is whether
the respondents' lands were probably within the scope of the project from the time the Government was committed to it. If
they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive
the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were,
the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned."
The evidence is insufficient to satisfy the test of enhancement value thus imposed and claimant has, therefore, failed to
sustain the burden of proof as to that claimed element of damage. In our view, however, the record, and particularly the proof
of the return from the business conducted on the premises, does sustain the finding of damage of $39,000, without inclusion
of any appreciation attributable to either project. We further find that amount to be adequate.