
    Henry J. Cookinham, Appellant, v. The State of New York, Respondent.
    Third Department,
    January 5, 1916.
    Eminent domain—appropriation by State of portion of private preserve — right of owner to consequential damages to remaining property.
    Where an owner of property has properly fenced, posted and advertised premises to convert it into a private preserve, pursuant to statute, and has at a considerable expense erected a dam across a creek, making a trout pond covering several acres, and has converted the property into an excellent hunting and fishing preserve and summer home, valuable principally as such, the State upon appropriating a part of the stream below the pond so as to practically destroy the stream and pond as trout waters and to lessen the value of the remaining premises as a hunting and fishing preserve and summer home, the owner is entitled to an allowance for the consequential damages in addition to the value of the land actually taken.
    Lyon and Cochrane, JJ., dissented in part.
    Appeal by the plaintiff, Henry J. Cookinham, from a judgment of the Board of Claims of the State of New York, entered in the office of the clerk of said Board on the 16th day of December, 1914, awarding him the sum of $8,114.19.
    
      
      H. J., Jr., & F. H. Cookinham [Henry J. Cookinham, Jr., of counsel], for the appellant.
    
      Egburt E. Woodbury, Attorney-General [Franklin Kennedy, Deputy Attorney-General, of counsel], for the respondent.
   Kellogg, P. J.:

The claimant owned 431 acres of land in the town of Retasen, Oneida county, which he used as a fish and game preserve and a summer home. He had properly fenced, posted and advertised the premises to convert it into a private preserve under the statutes of the State, and had used it as such for many years. There were on the property three sets of farm buildings, a large barn connected with the cottage, boathouses and other buildings. The cottage itself was burned before the appropriation. One set of farm buildings was within the appropriation line. He had built at a good deal of expense a dam across the creek, making a trout pond covering several acres, and a rocky stream with quite a fall connected the pond with the West Canada creek. Two mills operated by water were formerly on the premises, and a water power upon the stream could be developed to produce about twenty-one and six-tenths horse-power. The cost of this development, however, would be great, and the fixed charges of operation, therefore, heavy. It is not clear that the water power is of great practical value. The stream and pond were inhabited by trout, and the premises were all an excellent hunting and fishing preserve, and valuable principally as such. A great part of the stream below the pond is within the appropriation line, and the evidence indicates that the use by the State of the appropriated land has practically destroyed the stream and pond as trout waters, and lessened the value of the remaining premises as a hunting and fishing preserve and summer home. The evidence indicates in a general way that the preserve, including the original cost of the land and improvements, had cost him in the neighborhood of $50,000, although no particulars are given, and the evidence is not satisfactory upon that point. He had, however, constructed roads and trails, planted many thousand trees, and done a large amount of work at great expense to improve the property and render it suitable and available for the purposes for which he was using it. The Board of Claims has allowed him the fair value of the land taken, but apparently has not considered that the taking of the land has been a general damage to the remaining property. It is evident that the taking of the trout stream, the grove and the other property has affected very materially the market value of the remaining property as a preserve and summer home, and the value of the property taken does not compensate the claimant for the damage done him. We are satisfied that a substantial damage has been done to the remaining property, and that the claimant was fairly entitled to an allowance for the consequential damages which he has sustained, and that the award of the Board of Claims proceeds upon an erroneous basis in that respect. Upon the argument counsel upon both sides conceded that if this court found that the damages were insufficient, it would by its judgment fix the proper damages, rather than send the case back to the Court of Claims for further consideration. The evidence in behalf of the State treats the whole property as farm lands, and overlooks to a great extent its value for the purposes for which it has been improved and used and is principally valuable. The claimant, we are satisfied, has not been injured as much as he thinks he has, and the evidence produced by him exaggerates to quite an extent the damages he has sustained. Upon a careful consideration of the facts we determine that the consequential damages sustained by the plaintiff, on account of the remaining lands, is $5,000, and that the total damages he has sustained by the appropriation is $11,631.21, for which he should have judgment, with interest thereon from March 24,1911.

The judgment of the Board of Claims should, therefore, be modified accordingly, and as so modified affirmed.

All concurred, except Lyon and Cochrane, JJ., who voted for affirmance.

The determination of the Board of Claims is modified by allowing the plaintiff $5,000 consequential damages, which, added to the award, makes the damages $11,631.21, and as so modified affirmed, without costs, the counsel upon the argument having consented that if this court found the damages insufficient it might increase the amount. The court finds that the award made by the Board of Claims represents the just and fair value of the property actually taken by the State, but allows nothing for the consequential damage to the remaining property of the claimant, and that by the appropriation his remaining property has been depreciated $5,000 in value, and that the total damage which the claimant has sustained by the appropriation of the State is $11,631.21. We further find that the counsel upon the argument conceded if the damages were found to be inadequate that the court should modify the judgment accordingly, rather than send the case back to the Court of Claims for further consideration. The plaintiff is entitled to recover of the State the sum of $11,631.21, with interest thereon from March 24,1911, and the judgment appealed from is modified accordingly, and as so modified affirmed, with costs to the appellant.  