
    Charles J. Moulthrop et al., as Administrators of the Estate of Adelaide C. Moulthrop, Deceased, Claimants, v. State of New York, Defendant.
    (Claim No. 28345.)
    Court of Claims,
    December 21, 1948.
    
      Elijah W. Holt and Bernhart H. Holt for claimants.
    
      Nathaniel L. Goldstein, Attorney-General (Frank M. Noonan of counsel), for defendant.
   Greenberg, J.

This claim is to recover damages arising out of the appropriation of two parcels, 27-A and 27-B, located respectively on the easterly and westerly sides of the Hamburg-North Collins highway, which runs in a southerly direction from the town of Hamburg to the town of Eden, Erie County. The farm, from which the appropriation was made, consisted of approximately 100 acres and was divided by said highway so that 40 acres were on the easterly side and 60 acres on the westerly side. The farm residence and a neglected vineyard were located on the easterly part of the farm and on the land west of the highway were the barns and garage adaptable for stock-housing and other farm purposes.

Parcel 27-A, consisting of 0.840 acres, was a part of the farm lying along the easterly side of the highway, as it formerly existed, and extended across said farm from a point north of the dwelling house to the southerly boundary line of said farm. Parcel 27-B, consisting of 0.097 acres,, was part of said farm lying along the westerly side of said highway at a point where another road, the New Jerusalem highway, now intersects it, as a result of the changes made.

' Before the taking, and in the unpaved easterly portion of the old highway fronting claimants’ intestate’s property, were twenty-three maple shade trees. The trunks of these trees were located within the limits of the old highway and upon land which claimants’ intestate had owned, subject to the right of the use thereof as a public highway. To improve said highway, the State took part of" the farm located on and adjacent to the easterly side thereof, to wit, Parcel 27-A, removed the trees hereinbefore referred to and excavated on the side of the highway, leaving the- remainder of the land at a higher elevation than formerly. In addition to an award herein of $400 for said Parcel 27-A and Parcel 27-B, which were taken by the State, the sum of $1,200 is specifically allocated and allowed as damages to the remainder of the land and as damages for said twenty-three maple shade trees, not as representing the value of the trees but as compensation for the deteriorating effect of their absence upon the remaining property. (County of Broome v. McKune, 293 N. Y. 809.)

The appropriation of said Parcel 27-A and the improvements and alterations that ensued brought'the easterly boundary line of said Hamburg-North Collins highway to within eleven feet of the front of the dwelling house of said farm, whereas it formerly existed twenty-three feet from said highway. It also resulted in the removal of three ornamental spruce trees in Parcel 27-A in the yard in front of Said house, and will further cause the removal of and relocation of the septic tank connected with said house, part of which was located on said Parcel 27-A. By reason of the foregoing, the properties of claimant have been damaged and allowance is made in the sum of $700 as consequential damages because of the closer proximity of the farmhouse to the new highway, $500 for the ■ reconstruction of a new septic tank in some other location and $180 for the value of the three spruce ’ trees.

In the reconstruction and relocation of said highway, the elevation of the cement roadway had been changed so that the floor level of the garage was now about one foot below the level of the highway, whereas prior thereto it was about one foot above, with the result that the garage was flooded in times of rain and thaws. This necessitates the raising of the floor of. said garage to make it suitable for use and also requires the construction of drainage changes to avoid the flooding of the barn adjacent thereto, and an allowance of $600 is made for the reasonable cost thereof. .

The value of the premises prior to the appropriation was $20,000 and the value after said appropriation and the work of constructions thereat was $16,420. The difference in the sum of $3,580-is the damage sustained and awarded herein.  