
    John M. Andrews et al., Respondents, v. State of New York et al., Appellants.
    (Claim No. 34211.)
    Argued April 17, 1961;
    decided May 25, 1961.
    
      Thomas F. Moore, Jr., for Power Authority of the State of New York, appellant.
    I. The award was erroneous because it included as an element of damage the peculiar value of the property to the Power Authority for power purposes and its peculiar value to the Seaway Development Corporation for seaway purposes. (United States v. Twin City Power Co., 350 U. S. 222; United States v. Chandler-Dunbar Co., 229 U. S. 53; United States v. Cors, 337 U. S. 325.) II. The award was erroneous because it included an element of damage based on uses made possible only by the existence of the project and thus representing an enhancement in the value of the property occurring after and as a result of the public determination to build the project. (United States v. Miller, 317 U. S. 369; Shoemaker v. United States, 147 U. S. 282.) III. The rules of damages enunciated by the United States Supreme Court, which the Court of Claims refused to follow, express the law of New York but, in any event, they apply in this case where property was taken for a federally authorized power project and a federally constructed navigation project. (Cooper v. Aaron, 358 U. S. 566; United States v. 93.970 Acres, 360 U. S. 328; Federal Power Comm. v. Tuscarora Indian Nation, 362 U. S. 99.) IV. The Appellate Division erred in ignoring errors of law and holding that the trial court could properly find the property to be useful for industrial and commercial purposes and could properly arrive at the determination as to value which it made. (Fitzgerald v. State of New York, 10 Misc 2d 1046, 9 A D 2d 486; Sparkill Realty Corp. v. State of New York, 268 N. Y. 192.) V. The award was far in excess of the property’s value on any theory of damages. (Galloway v. United States, 319 U. S. 372; State of Washington v. United States, 214 F. 2d 33; Village of Lawrence v. Greenwood, 300 N. Y. 231.)
    
      Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for the State of New York, appellant.
    
      George J. Skivington for respondents.
    I. The trial court correctly refused to treat this land as having only abandoned farm land value. (United States v. Miller, 317 U. S. 369; United States v. Cors, 337 U. S. 325.) II. The only correct evidence as to valuation in this record was given by the claimants’ expert and the testimony of the State experts could not be -accepted or used. III. There is not a scintilla of proof in this record that these respondents knew anything about the coming of this public improvement until it actually came.
   Memorandum : The trial court has found as a fact and the Appellate Division affirmed that the appropriation of the subject property for the construction of a power line was not contemplated by the original project, which was enlarged to include that purpose only after the project was well under way. The valuation of the property for that purpose included an element of value enhanced by the existence of the original project, but under the ruling in United States v. Miller (317 U. S. 369) this is to be compensated where, as here, the project is subsequently enlarged by the construction of transmission lines, in which event the Miller case requires payment of the market price as enhanced by the factor of proximity to the public improvement. For this and other reasons stated in the opinions below, the judgment appealed from should be affirmed, with costs.

Burke, J. (dissenting).

I dissent and vote to reverse and order a new trial on the ground that the award for the property which had been held for 50 years admittedly as a potential site for power transmission in connection with the development of a St. Lawrence River power project is erroneous. The award improperly included an element of damage based on the uses made possible only by the existence of the seaway and power projects, and thus this element of damage represented an enhancement in the value of the property occurring after, and the result of, the public determination to build the seaway and power project. (Cf. United States v. Miller, 317 U. S. 369; United States v. Chandler-Dunbar Co., 229 U. S. 53; United States v. Twin City Power Co., 350 U. S. 222; United States v. Grand Riv. Dam Auth., 363 U. S. 229; United States v. Virginia Elec. Co., 365 U. S. 624 [decided April 3, 1961].)

Chief Judge Desmond and Judges Dye, Fuld, Van Voobhis and Fosteb concur; Judge Bubke dissents in a separate memorandum in which Judge Fboessel concurs.

Judgment affirmed.  