
    In re GILROY, Commissioner of Public Works. In re GOUVERNEUR et al.
    (Supreme Court, General Term, Second Department.
    March 6, 1895.)
    1. Condemnation Proceedings—Measure or Damages—Value or Property.
    In a proceeding to condemn real estate for use in connection with the water supply of New York City, the fitness of the property for such use is a proper element to be considered in estimating its market value.
    2, Same—Oath or Commissioners.
    The omission of the word “faithfully” from the oath of commissioners in the condemnation proceedings is material, and invalidates the proceeding, unless it is waived.
    8. Same—Jurisdiction—Residence or Commissioners.
    Objections to the places of residence of the commissioners are not jurisdictional, and may therefore be waived.
    Appeal from special term, Westchester county.
    Application by Thomas F. Gilroy, as commissioner of public works of the city of New York, to acquire certain real estate in the town of Carmel, Putnam county. From an order confirming the report of the commissioners, and from an order denying a motion to set the report aside, Mary M. Gouverneur and others appeal. R6V6rs6d
    Argued before CULLEN and BABTLETT, JJ.
    Eugene Frayer, for appellants.
    H. T. Dykman, for respondent.
   BARTLETT, J.

This proceeding was instituted in 1891, by the commissioners of public works of the city of New York, to acquire certain real estate in the town of Carmel, in Putnam county, for the maintenance, preservation, and increase of the supply of pure and wholesome water for the city. It related originally chiefly to the fee of the land under water constituting the bed of Lake Gilead; but it was also designed to extinguish any adverse claims which might exist in reference to a number of other pieces of property in Putnam and Westchester counties, which the municipal authorities of New York had previously attempted to acquire, for like purposes. The matter was subsequently extended by stipulation so as to refer to the same commissioners the question of the compensation to be made to the same claimants for an undivided third part of the mines and minerals in certain lands in the town of Southeast, in Putnam county, which the city likewise sought to acquire. The commissioners awarded the claimants $4,200 for the fee of Lake Gilead, and merely a nominal sum for the mines and minerals. The claimants now appeal from the order of the special term confirming the report of the commissioners, and also from an order denying a motion to set aside the report, on the ground that the commissioners had not taken the statutory oath, and because two of the commissioners were neither residents of the county where the property of the claimants was situated, nor residents of some adjoining county.

The principal question presented by the appeal from the order confirming the report is whether the commissioners did not adopt an erroneous measure of damages, in excluding from consideration, as an element in the market value of the property to be taken, the existence of any demand for such property on the part of the city of New York. The record plainly shows that they proceeded upon the theory that the existence of any such demand could not be considered as an element of market value. So far as the rule which they followed was merely a decision that the desirability of the particular property to the city in view of its necessities was not the legal measure of damages, it was correct. The commissioners went much further than this, however, and practically held that the availability of the property for use in connection with the water supply of New York City could not be taken into account by them in determining what was the fair market value of the premises. In so doing, it seems to me, they disregarded the great weight of authority as to the proper measure of compensation in cases of this .kind.

A question similar to that before us arose in the case of Trustees v. Dennett, 5 Thomp. & C. 217, which was decided by the general term of this department more than 20 years ago. It was a proceeding to acquire an interest in a pond, from which to supply the village of College Point with water. The owners desired to prove that the pond possessed a value as a source of water supply to cities, and sought to show that there was only one other pond available for like purposes within an area of six miles. They were not permitted to do this, and the court held that the commissioners erred and set aside their report. In Re New York, L. & W. R. Co., 27 Hun, 116, the land sought to be taken was peculiarly^ adapted for railroad purposes. The commissioners took that fact into consideration in awarding compensation to the owner, and the general term of the Third department sustained their action in so doing, and in refusing to value the premises as. agricultural lands only. “Here was a narrow strip of land,” said Boardman, J., “formerly used as a way, and only of value for a way. The owner holds it for such purpose only, expecting the time will presently come when he can utilize it to his own profit, or sell it to some one else for such purpose. Why, then, are not the purposes for which it is held and the uses to which it is adapted proper elements in its value?” The same question may be asked with reference to Lake Gilead, in the present proceeding. To ignore its adaptability to furnish water to the city of New York is to leave out of consideration the most important element which gives it any value in the market. The doctrine that the fitness of lands for particular purposes is an element in estimating their market value in condemnation proceedings is supported by the decision of the supreme court of the United States in the case of Boom Co. v. Patterson, 98 U. S. 403. There the property was desired by a boom company for the purpose of constructing a boom in the Mississippi, and was peculiarly adaptable for such purpose. The value was assessed at more than $9,000, having reference to the adaptability of the lands to the construction of a boom, but at only $300 if such fitness were left out of view. The supreme court affirmed the judgment for the larger amount, holding that their suitableness for forming a boom was a fact which the owner had a right to insist upon as an element in ascertaining the value of his lands. Mr. Justice Field, in the course of the opinion, cites with approval the case of Young v. Harrison, 17 Ga. 30, which was a proceeding to acquire a site for the abutment of a bridge, wherein the supreme court of Georgia held that the value of the land for a bridge site was to be considered in assessing the compensation to be made to the owner. To the same effect is a well-considered decision in an Arkansas case (Railway Co. v. Woodruff, 49 Ark. 381, 5 S. W. 792), where the land was to be condemned for the erection of a railroad bridge. The contention was that as the defendant had no right to bridge the Arkansas river, while the plaintiff possessed such right, the defendant, as owner, could not have any damages based upon a use to which he could not put the property himself. The court, however, refused to adopt this view, holding that the probable demand there may be for suburban property for depot and bridge sites is a recognized factor in the market value of such property. A similar rule as to the measure of compensation, where the power of eminent domain is exercised for the acquisition of reservoir sites, has been laid down in a number of cases. Town Co. v. Neale, 78 Cal. 63, 20 Pac. 372; Waterworks v. Drinkhouse (Cal.) 28 Pac. 681; Alloway v. City of Nashville, 88 Tenn. 512, 13 S. W. 123. In the case last cited, it is well said that market value “includes every element of usefulness and advantage in the property. If it be useful for agriculture or for residence purposes, if it has adaptability for a reservoir site or for the operation of machinery, if it contains a quarry of stone or a mine of precious metals, if it possesses advantages of location or availability for any useful purpose whatever, all these belong to the owner, and are to be considered in estimating its value.”' Without further citation of authorities, I think it is sufficiently clear that the commissioners in the case at bar erred in excluding from consideration an essential element in the market value of the property under condemnation; that is ito say, its adaptability to furnish a portion of the water supply of the city of New York. It follows that their report should be set aside.

This conclusion renders it unnecessary to pass upon the objections to the form of oath, and to the residence of two of the commissioners, except so far as some suggestion from the general term may be useful upon the new appraisal which must be had. In my opinion, the omission of the word “faithfully” from the constitutional oath which the statute required the commissioners to take was a material omission, sufficient to invalidate the proceeding, unless the parties can be held to have waived the objection by going on without calling attention to the defect until the report was made. Merritt v. Village of Port Chester, 71 N. Y. 309.

As to the nonresidence of two of the commissioners, that was a matter of which the claimants had notice bv the terms of the order appointing them. It did not affect the jurisdiction, and the objection now comes too late, having clearly been waived by the conduct of the claimants.

Order confirming report of commissioners reversed, and report set aside with $10 costs and disbursements, and a new hearing directed to be had before other commissioners.  