
    In the Matter of the Application and Petition of J. Edward Simmons and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate for and on Behalf of the City of New York, under Chapter 724 of the Laws of 1905, and the Acts Amendatory Thereof, in the Towns of Olive, Marbletown, and Hurley, Ulster County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. Ashokan Reservoir, Section No. 7, Parcel No. 271a; James P. McGovern, Appellant; The City of New York , Respondent.
    Third Department,
    January 22, 1909.
    Eminent domain- — condemnation of lands.for water-supply, city of New ; York—evidence—value of lands taken.
    On the condemnation of lands for the construction of a reservoir to supply the city of New York with water, it is not error to strike out expert testimony as to: the- value of lands taken based upon the value in conjunction with other lands included in the reservoir site, upon the value of the reservoir itself, upon the feasibility and cost of conveying the water to the city and the value of the water itself to the city, for those matters have no bearing upon the market value of the property at the time it was taken.
    In determining the value it is proper to show the condition of the property and its surroundings, the uses to which it has been applied and its capacity for other uses, including that for which it is required; but a witness cannot give an opinion as to its value for any special use. unless purchasers can be found who would pay more for it because of its adaptability to such use.
    Appeal by the claimant, James P. McG-overn, from part of an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 15th day of February, 1908, confirming the first separate report of the commissioners of appraisal for section Bo. 7 in the Ashokan reservoir, and also from part of the appraisal and report .of the commissionei's.
    
      D-Cady Herrick, Edward A. Alexander and Jerome H. Buck, for the appellant.
    
      John J. Linson, Howard Chipp and Francis K. Pendleton, for the respondent.
   Sewell, J.:

' The commissioners awarded $3,800 as the compensation which ought justly to be made by the city of Bew York to the appellant. The real estate for which the award was made consists of sixty and six-tenths acres and is one of several hundred parcels taken by .the city for the reservoir. The chief question presented by this appeal is whether the commissioners erred in striking out the evidence of Cornelius C. Vermeule, a civil engineer, as to the value of the property in question, the intrinsic value of the reservoir and the value of the water to be impounded by it. The witness testified that the fair and reasonable market value of this parcel on the 22cl day of July, 1907, when it was taken by the city, was $99,280, and that in arriving at this estimate he considered the special adaptability of the reservoir site, of which the parcel is a part, and the special availability of it as compared with other possible sites, and secondly the reasonable value of water delivered to a city for city use and the cost of delivery.

He also testified that the Ashokan reservoir site was worth $34,000,000 and that this valuation was based upon the capacity of the reservoir, the reasonable market price of the water when delivered at the furthest city in which it would be likely to be used and the cost of delivery ; that the storage capacity of the property-in question would be seventyrsix one-hundredths of one per cent of the whole capacity of the reservoir; that on that basis the intrinsic value of the property taken would be $248,200, and the market value' was forty per cent of that sum or $99,280.

Itj therefore, appears that the opinion of tile witness as to the value of the premises in question was based upon its value in conjunction with the other parcels included in the reservoir site, upon the value of the reservoir, the feasability and cost of conveying the water in pipes or an aqueduct to the city of New York, and the value of the water to the city. It is to be noted that this evidence did not tend to prove the present market value of the property or its value at the time it was taken, but its probable value after other prop-

■ erty is acquired, and millions of dollars are expended in the construction of a reservoir, which may and may not be built. It was simply his opinion of the value based upon the necessity of the land to the city or what the city could afford to pay rather than do' without it.

It is too. clear for argument that such an estimate of Value is in - the highest degree uncertain and speculative. It is .sustained by no authority cited by the learned counsel for the appellant, and I think none can be found. On the contrary, it was held in Black River & M. R. R. Co. v. Barnard (9 Hun, 104), when the land sought to be taken was peculiarly adapted for railroad purposes) that it is the detriment to the owner for which he is to be compensated. When that'has been ascertained he is not to be paid more, because the land is peculiarly adapted to the use of the railroad.

To the same effect was the decision in Matter of Boston, H. T. & W. R. Co. (22 Hun, 176), made by the General Term of this department nearly thirty years ago, where Learned, R. J., said: “ The situation of hills and streams often determines, as a matter of necessity;'where a public road must be built. If it must go through some narrow pass, where the land is owned by one person, he must be made to give up his land for the public benefit. All that he can have is compensation. Now, if the railroad company are to pay what the piece of land is worth ‘ for railroad purposes,’ and if the road must be built through that pass, then they must pay any sum which the prospects of a successful railroad will warrant. For the land would be worth for railroad purposes ’ any sum, however large, which would not actually prevent the building of the road. Such a rule would do away with nearly all the benefit of the compulsory power of eminent domain. It would be giving more than compensation.”

The. just compensation which is guaranteed to the owner whose property is taken for public use is its fair market value- at the time taken. (Matter of Daly, 72 App. Div. 394; Matter of East River Gas Co., 119 id. 350; Village of St. Johnsville v. Smith, 184 N. Y. 341; Moulton v. Newburyport Water Co., 137 Mass. 163.) It is true that lie is not limited in compensation to the use which he makes of his property/ but is entitled tó a fair market value for any use to which it is adapted by virtue of its location and for which it is available.

In determining the question of value, it is proper to show the condition of the property and its surroundings, the uses to which it has been applied, .and its capacities for other uses, including that for which it is required, and °then the witness can give an estimate of its value, in consideration of all the uses and elements of value; but he cannot give an opinion of its value for any special use. The value of property is not limited by the present use, or the use for which it is sought, as either may be more or less than its market value. For example, land may be valuable, abstractly considered, for reservoir purposes, but its market value would depend upon a demand for such a purpose. If no^ one desired the property for a reservoir, its value might be much less than for any other purpose. The question, therefore, is not whether the property is peculiarly adapted for the special use, but whether purchasers can be found who would pay more for it because of its adaptability to the use. It is only when it is shown that the chances or probability of a sale for some special use have affected the price which the property would bring in market that its availability or adaptability can be considered in determining the market value. (Matter of New York L. & W. R. Co. v. Arnot, 27 Hun, 151; Matter of Daly v. Smith, 18 App. Div. 197.)

Ho evidence was given in the present case tending to show that before the land was taken by the city it was regarded as more valuable because of its advantage of location and adaptability for use as a reservoir. It is' substantially undisputed that the value “ for reservoir purposes ” is entirely due to the fact that the city has determined to build the reservoir, and that the owner is now seeking to make the necessity of the city his opportunity.

Without further discussion, I think it is sufficiently clear that the commissioners did not err in' striking out the evidence.

The order appealed from should, therefore, he affirmed, with costs.

Order unanimously affirmed, with costs.  