
    Walter Langdon, Pl’ff, v. The Mayor, etc., of New York, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 13, 1891.)
    
    1. Eminent domain—Compensation bob taking bulkhead bights.
    Where the city by the construction of a new bulkhead wall has taken away the rights of an owner of a bulkhead, the measure of compensation of the latter for such deprivation is not necessarily limited to a capitalization of the amount which might have been received at such bulkhead for wharfage and cranage, but he is entitled to receive what he could have obtained in the market for these rights, viz.: the sum for which it could have been sold, whether its value arose from preferential rights of the large steamship companies, or the right to collect wharfage.
    3. Same—Evidence.
    Reports of the dock department showing that they had bought bulkhead property and wharf rights is admissible as an admission that similar property had been purchased at certain prices; if the property purchased was different from what the admission would imply, the city should show that fact by other evidence.
    Motion on the part of the defendants to confirm referee’s report, and motions by the plaintiff to set aside referee’s report, and for a new hearing.
    
      Thomas P. Wickes, for def’t; W. H. Peckham and W. J. Marrin, for pl’ff.
   Van Brunt, P. J.

It has been determined in this action that the plaintiff was entitled to recover from the defendant the value of the property which was taken by the defendant in the construction of its new bulkhead wall in front of plaintiff’s bulkhead, and the reference which has, resulted in the report now before us was to take proof and report the same with his opinion as to the value of the property so taken both at the time of the taking of the property and also at the time of the hearing before the said referee.

The referee having heard the proofs reported that in his opinion there was no difference in value between the time of the taking of the property and the time of the healing; and reported in favor of the plaintiff for a very small amount of the sum which was claimed by him ; and the question which comes before this ■court upon the presentation thereof is what judgment should be rendered upon the facts established.

The claims of the parties were very wide apart, and it seems to us, upon an examination of the evidence, that the investigation has proceeded to a considerable extent upon an erroneous theory. It seems to be considered that as this right to the bulkhead "was a right to collect wharfage and cranage, that therefore the measure of compensation to be paid to the plaintiff was to be necessarily limited to a capitalization of the amount which might be received at such bulkhead for wharfage and cranage; and, in the opinion of the learned referee, very copious references are made to the opinions of the court of appeals in these bulkhead cases to sustain this view.

We think, however, that these opinions do not bear this construction, but that the language used is to be interpreted in view of the question which was being discussed by the court and presented at the time. When this case was before the court of appeals the court discussed the evidence and reversed the judgment because it appeared that the experts who were examined as witnesses for the purpose of determining the value of the property taken had included (and the referee had done the same) an erroneous element in fixing such value; and all that was decided was that a report based upon evidence which had taken into consideration an erroneous element of valuation could not be sustained.

There seems to be no reason why the plaintiff, because of the peculiar nature of the property, stands in any different relation to the power exercising the right of eminent domain than the owner of any other property, namely, that he is entitled to compensation for the property of which he has been deprived. And the ordinary rule governing such measure of compensation is that he shall be paid the market value of the property. Market value is ordinarily arrived at by conclusions deduced from transactions in property of a like character. Persons familiar with the property and with dealings in property of a like character are called upon to testify as to their opinion of its value, such opinion being based upon knowledge acquired by other transactions.

Market value is ss plain, definite term. A market signifies not only that there shall be sellers but also that there shall be buyers : because there can be no market where everybody wants to sell, and nobody wants to buy ; or where everybody wants to buy and nobody wants to sell.

Therefore in the case at bar the question to determine was, what in the market could the plaintiff have obtained for these rights which he had ? The fact that they produced a certain amount of income may have been some evidence of value. But it was by no means conclusive ; nor was it the best evidence. A man might own a lot on Fifth avenue and be able to derive very little rent from it, and yet, for the purposes of sale, it would be of great value. So it is established by the evidence in the case at bar that the mere right of collecting wharfage and cranage was but a small incident in what was the market value of the ownership of such right. And it was shown and proven in this case that to a certain class of the trade which came to the port of Hew York these bulkheads were almost a necessity, and that this had ¿been so early recognized that in 1858 the legislature had passed an act whereby the exclusive use of piers and bulkheads or wharves and slips might be given to certain ¿lasses of commerce to the extent necessary for the conducting and doing the business in which they were engaged.

It appeared that the large steamship companies who were located in and about this property were desirous of acquiring these bulkheads in order that their access to the slips might not be interfered with. And it is to be observed that this exclusive use which is authorized by the act of 1858 does not refer only to the time of the actual occupancy of the wharf and slip by the vessel itself, but such exclusive use may be kept and reserved to the extent necessary for the conducting and doing the business in which the companies were engaged. If it is necessary' to keep the slip vacant for the incoming boat although not actually there in order that the business in which they are engaged shall be properly conducted, clearly such right can be reserved under that act; and the result of the ownership of this bulkhead right by these large steamship companies was substantially to prevent their being interfered with in the occupation of the slip by any other crafts entering for the purpose of getting to the bulkhead, which exclusive use was an absolute necessity for the proper conduct of the business in which these companies were engaged. This gave a substantial value to these bulkheads far in excess of the right of collecting wharfage and cranage.

The learned referee states that if the estimate of value presented on the part of the plaintiffs is adopted, he does not think a reasonable measure of compensation for the destroyed wharfage rights of the plaintiffs as they have been limited by the courts and the value of the incident of preferential use which under the suggestion of the court of appeals may be attached thereto could be honestly ascertained and fairly measured. And he further stated: “ I do not understand that what is stated in the Eingsland case concerning this incident of preferential use necessarily requires that I should determine that it is so related to the wharfage rights of the plaintiffs in these cases as to justify a compensation therefor tremendously in excess of the value of their simple and uncomplicated wharfage rights.”

But the evidence in this casé showed beyond question that the market value of these bulkheads was far in excess of the simple wharfage rights. And if that arose from these preferential rights, however problematical they might be, the city had no power to deprive the plaintiff of his property without paying that which this property was reasonably worth, that for which it could have been sold, whether such value arose from preferential rights, or the right to collect wharfage.

Due compensation means paying the full value; and value is determined by- what a thing can be sold for.

In view of the condition of the evidence in this case at the time it was submitted to the learned referee, we concede that it was impossible to make a just and fair estimate of the value of these rights. The evidence upon the part of the plaintiff undoubtedly gave a greatly exaggerated estimate of the value of these privileges ; and the estimate on the part of the defendant on the other hand ridiculously small. The plaintiff does not seem to have been entitled to receive an award as large as is claimed by him ; neither was the city to be allowed to appropriate this property for the mere bagatelle of the capitalization of the wharfage rights.

There was evidence offered, however, which was stricken out by the learned referee which might have afforded a fair ground upon which an estimate of value might have been founded. The plaintiff offered in evidence the reports of the Dock department showing that they had bought what in some instances was described as bulkhead property and wharf rights, and in others bulkhead and wharf property at various places upon the North Biver. This evidence was objected to solely upon the ground that the deeds should be produced, as they might show that the property referred to in the report comprised more than that which had been taken from the plaintiff. This objection was sustained and the offer of evidence was refused. This, we think, was error. If the plaintiff had a right to show these facts upon the question of the value of these rights, then this evidence was competent, and if it was to be limited it was the defendant who was called upon to limit the same. The nature of the evidence' is not objected to ; but the only objection is that the deeds should be produced. Now if a party makes an admission that he has bought certain property at a certain price, that admission is evidence; and if he wants to limit the admission by showing that the property is different from that which the admission would imply, he has to offer evidence to show the limitation.

Thus it would appear that evidence which was very important in determining the value of these rights was excluded from consideration by the referee ; and such evidence not having been admitted or considered, and not being in the record as far as this court is concerned, it cannot be considered by us ; because if the evidence is to be considered, the defendant should have the opportunity to show that notwithstanding these admissions the property purchased was differently situated and of a different character from that taken from the plaintiff, and that consequently the evidence could have no bearing upon the question under investigation.

The value of this evidence is peculiarly great in a case like the one at bar, where it appears that it is difficult to fix a market value dependent upon actual transactions, these rights not being the subject of frequent barter and sale so as to enable parties familiar with the market to speak from actual transactions, but their opinions being of necessity largeN dependent upon ideas to some extent speculative.

We think, therefore, that there having been an exclusion of evidence which was competent and the investigation in respect to the value of this property having proceeded upon an erroneous theory, this report should be sent back in order that the parties may introduce additional evidence upon which a judgment may be rendered.

Barrett and Bartlett, JJ., concur.  