
    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. 6, Parcel No. 246. 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 Mew York—-evidence — structural cost of building — evidence on issues not raised—costs.
    When land is taken by eminent domain the owner is entitled to receive the full value, not the value to the owner or to the condemnor, but the market value of . the property, which is its fair value as between one who wants to purchase and one who wants to sell. ' ■
    While the compensation of the owner should not. be based upon the condition of the property at the timo it is taken, or upon the use which he makes of it, he being entitled to receive its market value for any purpose to which it is adapted, yet he is not entitled to be paid an enhanced value merely because the land is peculiarly adapted to the use to which it is to he put.
    The owner is not entitled to more than the fair market value of the lands because of a mere chance or probability that some time in the future it may be used for some purpose to which it is adapted, unless it. appears that its actual market . value is enhanced by such chance or probability.
    Thus, where the lands are taken for the construction of a reservoir in connection with the water supply of the city of. New York, it is not error to exclude evidence tending to show that the value of the property had been increased because the city had selected that site, in the absence of evidence that the value of the land had’ been increased by its adaptability for reservoir purposes prior to the condemnation proceedings.
    The value of buildings standing ón the land should be included in the appraisal, but not the cost of constructing the buildings, and evidence thereof is inadmissible..
    In such proceeding it is not error to exclude evidence of the adaptability of the property for reservoir purposes when that fact is stated in the petition and no issue thereon is taken by the owner. This, because where material allegations of a verified petition in a special proceeding are not denied, they stand proved for the purposes of the ultimate order.
    On the condemnation of lands under chapter 724 of the Laws of 1905, providing for an additional water supply for the city of New York, the allowance of cost is governed b.y section 13 of that act. The parties are not entitled to costs as in an action under section 3240 of the Code of Civil Procedure.
    •Appeal by the claimant, James P. McGovern, 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 17th day of April, 1908, confirming the first separate report of the commissioners of appraisal for section Mo. 6 in the Ashokan reservoir, and also from part of the appraisal and report of the commissioners.
    The opinion delivered at Special Term is reported in Matter of Simmons (58 Misc. Rep. 607).
    
      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.:

This proceeding was instituted under chapter 724 of the Laws of 1905, entitled “An act to provide for an additional supply of pure and wholesome water for the city of Mew York ; and for the acquisition of lands or interest therein, and for the construction of the necessary reservoirs, dams, aqueducts, filters and other appurtenances for that purpose; and for the appointment of a commission with the powers and duties necessary and proper to" attain these objects.” .

The act provides for the appointment of commissioners o'f appraisal, and section 12 thereof provides that it shall be their duty to view the real estate and hear the proofs and allegations of the parties and other persons interested, and that they “ shall, without unnecessary delay, ascertain and determine the just and equitable compensation which ought, justly to be made by the city of Mew York to the owners or the persons interested in the real estate sought to be acquired or affected by said proceedings.”

The proceeding was commenced June 25,1907, to acquire, among other property, certain real estate in the town of Hurley; Ulster county, known as Parcel 246. The commissioners of appraisal were appointed June 29, 1907, and on the.6th day of November, • 1907, they proceeded to hear the proofs and allegations of the parties. In their report dated January 3,1908, they stated that they had estimated and determined upon $3,300 as the sum to be paid to tiié owners for the fee of such premises.

The principal question presented by this appeal .is whether the commissioners proceeded upon an erroneous principle in.determining the amount that should be awarded to the owners. It is unnecessaiy to cite and comment upon the various cases, decided in the courts of this and other States, upon the subject of damages in proceedings of this character. It is sufficient to say that the rule is well established in this State, by an unbroken line of authority, that the owner is to receive the full value of the land taken, not its: value to the owner or to the person or corporation seeking to acquire it, but the market value of the property, which means the fair value as between one who wants to purchase and one who wants to sell. The landowner is not limited in compensation to the condition which the property is in at the time or to the use which, he makes of it, but is entitled to receive its market value for any purpose to which, in the judgment of the commissioners, it is adapted. He is, however, not. entitled to be paid more merely because the land is peculiarly adapted to the use to which it is intended to be applied. The -fact that the land will be used for a reservoir rather than a farm or any other lawful business, forms no material out of which an award is to be made. Whether the land taken is to be used for a reservoir or a garden is a question, so far as the compensation is concerned, with which the commissioners have nothing to do. Their duty is to award compensation for the taking of the land and not for the use to which it will be applied when taken. (Albany Northern R. R. Co. v. Lansing, 16 Barb 68 ; Matter of Daly, 72 App. Div. 394; Matter of East River Gas Co., 119 id. 350.)

It is only when it is shown that it has a market value for some particular use^that the availability and adaptability of the property to the use can be taken into account by the commissioners in determining its fair market value.

The owner is not entitled to swell the damages beyond the fair

market value of the land at the time it is taken by any consideration of the chances or probability that sometime in the future it may be used for some purpose to which it is adapted unless it appears that the market value of the property is enhanced by the chances or probability. As was stated in Moulton v. Newburyport Water Co. (137 Mass. 163): If there were different customers who were ready to give more for the land on account of this chance, or if there were any other circumstances affecting the price which it would bring upon a fair sale in the market, these elements would necessarily be considered by the jury, or by a witness, in forming an opinion of the market value.” But the mere hopes of an owner that his property may at some future time be required for a reservoir or storage basin for supplying - the city of Mew York or any other city with water cannot be considered.unless the probability of such an event in the public mind had in fact affected the fair market valué at the time it was taken. (Matter of New York, L. & W. R. Co. v. Arnot, 27 Hun, 151.) This rule was stated by Mr: Justice Cullen in Matter of Daly v. Smith (18 App. Div. 197) where he said : “ It is the market value of the property that is the measure of the compensation. When, therefore, it is sought to show that a tract of land has a use for a particular purpose it must also be shown that it is marketable for that purpose or has an intrinsic value.”

It is contended on behalf of the appellant that an improper basis was adopted by the commissioners in determining the compensation which ought justly to have been made him : (1) In excluding from consideration as an element in the market value of the property the structural valué of the buildings upon it. (2) In excluding evi" dence of the adaptability and availability of the property for reservoir purposes. (3) In excluding evidence of the value of the property as a part of a reservoir site. It is argued that the award is much less than it would have been had this evidence been admitted and considered. It is unnecessary to discuss the question whéthér the commissioners erred in refusing to permit the owner to show the value of the structures upon the land further than to say that it is the market value of the land with the buildings and other improvements thereon that is the measure of compensation. The buildings put upon the land are simply adjuncts to the freehold. They add to its value and are properly included in an appraisal of it, but it is the value of the land and structures which is to be determined and not the cost of them. For these reasons it has been held that testimony of the structural value of buildings is' not competent in proceedings of this kind. (Matter of City of New York, Blackwell's Island Bridge, 118 App. Div. 272; Village of St. Johnsville v. Smith, 181 N. Y. 341.)

It is probably true that the commissioners might properly have received evidence tending to show that the Ashokan reservoir site is the cheapest, best and most available site for water supply purposes and for furnishing water to the city of Hew York, but it was not error to exclude the testimony offered as those facts were stated in the petition, and no issue was raised .over the question of a demand on the part of the' city of Hew-York or the availability or adaptability of the property. When the material allegations in a verified petition in a special proceeding are not denied by some counter affidavit they stand ' sufficiently proved for the purpose of the ultimate order. (Matter of Metropolitan El. R. Co., 26 N. Y. St. Repr. 968; Matter of New York, L. & W. R. Co., 99 N. Y. 12.)

The proceeding was based upon a demand for the property on the part of the city of Hew York and its adaptability and availability in conjunction with other parcels for a reservoir site. The record shows that the commissioners understood that these facts were established, and that they went no farther than to hold that the facts could not be considered in forming an opinion of the market value of the' property, in the absence of any evidence showing that they had enhanced or affected its value, before it was appropriated by the city.

It was for the commissioners to determine. whether the land was really salable and marketable as a part of a reservoir site, and. if they so found, the real price or sum that could be obtained for it. The appellant did not prove or attempt to prove that the value of the property in question, or any of the property included in the reservoir site, had been increased by its adaptability or availability for reservoir purposes before the commencement of this proceeding. There is no shadow of evidence of any prior demand for the property as a reservoir site or of any customer who-would give more for it for that purpose, or of any circumstance by which the value of the parcel in question, as a part of a natural reservoir site, could be estimated or determined. In the absence of such evidence it is plain that the appellant has received 'the benefit of everything which enhanced the value of his property, except the increase caused by the taking of it by the city. The offer was in effect to prove an increase in value due to the selection of the site by the city and the proceeding to acquire it. It did not merely bring up the question of the value of the property taken from the appellant, but that value plus an increase in the value caused by the proceeding to condemn. As I have already observed, the question was the market value of the property unaffected by the determination to use it for a reservoir site, and to this question the commissioners rightly confined the evidence.

As to the authority of the court to allow costs under section 3240 of the Code of Civil Procedure, I agree with the opinion of Mr. Justice Mills in Matter of Board of Water Supply of City of New York (not reported ), which was another proceeding under this statute, that a claimant is not entitled to costs at the rates allowed for similar services in an action. Section 13 of the statute in question provides for an allowance to parties appealing in the proceeding of such sums as the commissioners may deem proper to be allowed “ as expenses and disbursements, including reasonable compensation for witnesses.” My opinion is that the. Legislature intended by this provision to regulate the question of costs in proceedings under the statute. Laws are presumed to be formed with deliberation and with full knowledge of all existing ones on the same subject. (Bowen v. Lease, 5 Hill, 221.) So it is but reasonable to conclude that the Legislature in passing this statute did not intend that the right to costs under it should be governed by the general statute as to costs in special proceedings. This case is to be distinguished from Matter of City of New York, Town of Hempstead (125 App. Div. 219), relied upon by the appellant. Chapter 725 of the Laws of 1905, under which that proceeding was brought, contains no provision for the allowance of costs, expenses or disbursements to the' claimant. It does not,” said Mr. Justice Woodward in that case, assume to be an act to govern the proceedings in -eondemna- . tion:in whole; * .* * it relates to the matter of proceedings under other statutes, whether general or special,, and being a statute in pari materia is to be read'and construed, in connection, with tliesé other statutes, rather than as superseding- them,”

Chapter 724 is a special statute. It pretends to cover the- whole question of condemnation- proceedings by the city of New York to acquire lands for the purpose- of a reservoir. It prescribes-,an< in.de- " pendent procedure and was evidently intended to furnish, the- whole law ,on the particular subject. I am also of the opinion that the compensation awarded is. adequate in- view o-f the evidence, taken. •If these views are correct, they lead to an affirmance of the. order appealed from, with costs.

Order unanimously affirmed, with costs. . . 
      
       For opinion see N. Y. Supr. Ct. Cases & Briefs of Counsel (State Law Library), Vol. 7150, No. 1, Applt’s Br., p. 132 et seq.— [Rep.
     
      
       See Laws of 1905, chap. 724, § 13, as amd. by Laws of 1906, chap. 314.— [Rep.
     