
    In the Matter of the Petition of The Trustees of the New York and Brooklyn Bridge, Appellant, to Acquire Title to Real Property in the City of Brooklyn, County of Kings and State of New York, now of Patrick Cassidy and Others, Respondents.
    
      Eminent domain — measure of damages — when hut part'of a plot of laird is taken —■ where the plan of a building wider construction is changed.
    
    Where part of a plot of land is taken under the right of eminent domain, the measure of damages is ordinarily the difference between the value of the whole premises before the taking and the value of the part which remains after the taking.
    Where, however, the owners have constructed a building covering the entire plot, as far as the first tier of beams, and upon receiving notice that condemnation proceedings are about to be commenced, change the plan of the building so as not to include the portion of the plot sought to be taken, they are entitled, in addition to the ordinary damages, to recover the value of a foundation wall left upon the portion of the plot taken, and also to the actual cost and expenditure incurred by them in changing the plan of their structure.
    Appeal by the petitioner, The Trustees of .the New York and Brooklyn Bridge, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of. the clerk of the county of Kings on the 20th day of January, 189Y, setting aside the report of commissioners of appraisal.
    
      James G. Bergen, for .the appellant.
    
      Jesse Johnson, for the respondents.
   Cullen, J. :

The court at Special Term set aside the report of the commis- ' sioners of appraisal appointed in this proceeding, upon the ground that the report showed on its face that the commissioners had adopted an erroneous theory of estimating the compensation. The question upon which the decision at Special Term proceeded wholly depends upon the construction to be given to the language used in two different portions of the report, which the learned court was of opinion were in conflict and contradictory. We are unable to concur in that view, though we think the conclusion reached was correct.

The land taken by the petitioner is a small triangle at the corner of defendants’ plot, seven feet six inches in front on the street, fourteen feet in depth, and containing about forty-five square feet. A short time before these proceedings were initiated the petitioner notified the defendants of its intention to acquire the triangular plot, at the time the defendants were proceeding to erect a building on their land. On the receipt of the notice from tire petitioner the defend- . ants modified the plans of their structure, so as to omit the triangle sought to be condemned. They had proceeded so far with their building as to lay a foundation wall on the triangle. At the litigation before the commissioners the defendants contended that they were to be allowed for damages occasioned by the change of plan and the diminution in the value of their structure, which was wholly completed at the time of the commencement of the proceedings. The commissioners reported as follows: “We have determined the value of the property taken to be the difference between the value of the whole property of which that taken formed a part before the taking, and the value of the whole property of which that formed a part after the taking. * * * In determining the fair market value as aforesaid, we have given due consideration and effect to the best and most advantageous use to which the property, as a whole, could have been devoted, as well as to the use to which it has been devoted, and we have determined the, value of the premises taken according to the rule as adopted by us, as hereinafter stated, to be the sum of four hundred and ten y3-^ dollars as vacant land, and also the sum of 'one hundred and .two y5^ dollars-for-the foundations -aforesaid) making, in all .the "Sum. of five hundred and twelve T8-^- dollars. We have declined to .consider that by reason of the change of plan and of construction of the building upon the part of the property not taken, any-right .to compensation in the nature of damages to a building never put upon the premises taken has arisen to the owner. * * * The foregoing, findings and conclusions are. governed by th'e judgment of the commissioners,.-that in awarding compensation they .cannot allow, as part of the compensation to be made, for the talcing1 of this particular land, or as- an element of damage to-the-residue of the land as a Consequence of such taking, any claim of damage because the defendant landowners, after being notified by the plaintiffs of an intention to acquire the land in question, abandoned the completion of a projected building-then in the course óf erection, and which-,, at the. time of such abandonment, had been so far-erected as to -include the entire, plot, and had been carried up to the first tier of beams'. The said abandonment on the part, of the defendant land-: owners consisted of tearing down so much of the contemplated ■structure as had been erected upon the land.sought to be acquired by this proceeding, and contracting -the -dimensions of the building, as originally planned, by running a portion of the ■ northerly wall thereof along -the southerly line of the land sought to be acquired.' Iir -the opinion, of the, commissioners this course on the part of the defendant landowners converted the premises now sought to' be acquired into vacant land, separated and distinct .from the residue of this plot, .The commissioners'can conceive of ■ no- valuable -use to which this vacant, piece of land caii be put.”

■ The Special. Term was of opinion that the-rule first-enunciated- by the commissioners,-that the measure of compensation was the difference between the value of the whole premises before the taking and the value of the. property left after the taking, was correct, but it further thought'that the statement in the concluding clause of the report, that “in the opinion of the commissioners this-course on the part of the defendant landowners converted the premises now sought to be acquired into vacant land separated and distinct from the residue of this plot. The commissioners can conceive of no valuable use to which this vacant piece of land can be put,” showed that the commissioners had departed from the rule they had - previously enunciated, and awarded compensation, treating the plot taken as wholly separated and disconnected from the remainder of the defendants’ property. We think this is not the fair interpretation of the report. The defendants were entitled to receive as compensation both the value of the land taken and the injury, if any, done to the value of their remaining lands. The statement in the conclusion of the report that, in the opinion of the commissioners, the course on the part of the defendant landowners converted the premises sought to be taken into vacant land separate and distinct from the residue of the plot, and that the commissioners could not conceive of any valuable use to which the plot could be put, does not show that the commissioners awarded as compensation solely the value of the land so separated. On' the contrary, they unequivocally assert that the compensation was ■ determined by deducting from the value of the whole property before the taking, the value of the property remaining after the taking. The correctness of this assertion is shown by the fact that though the commissioners stated that the land taken, treated as a vacant tract, was susceptible of no valuable use, they have-awarded for it the sum of $410.30.

We are of opinion, however, that there was an item of damage for which the defendants were not allowed and for which they were entitled to compensation. An allowance was made for the foundation left on the ground, but it appears that when the notice of intention to take the property was given the erection of the building had proceeded as far as the first tier of beams. Now, we agree with the commissioners that in determining the compensation they could not consider a proposed building which was never carried to completion, but this is not the ordinary case of a landowner seeking damages because his inchoate and unexecuted intention to improve the property in some particular manner is necessarily modified or frustrated. The work of constructing the building was actually being prosecuted at the time of the notice. It may be that the defendants were not prevented from' continuing their improvement until the title of the property was actually acquired. In such case the petitioner would have been compelled to .pay for the injury to the structure. Now, assuming- that the defendants had that right, still the fact that they adopted the other course, of at once ■ modifying their building in accordance with the notice given them by the trustees, thus saving expenditures unnecessarily to be made, should not operate to their prejudice. Their action, in proceeding at once to change the plan of the building and its construction, was in the interests of the petitioner as well as to their own. Whatever may be the general rule governing awards in condemnation proceedings, there may be special circumstances taking any particular case out of the rule. It would shock our sense of justice that in this case the defendants should not he allowed the actual cost and expenditure incurred by them in changing the plan of their structure. For this reason we think the award should not stand.

The order appealed from should be affirmed, - with ten dollars costs and disbursements.

All concurred.

• Order appealed from affirmed, with ' ten dollars costs' and disbursements.  