
    In the Matter of the Application of the Board of Water Supply of the City of New York Pursuant to Section 42, Chapter 724 of the Laws of 1905, as Amended by Section 9, Chapter 314 of the Laws of 1906. Business Damage Commission No. 3; Benjamin O. Davis, Claimant, Respondent; City of New York, Petitioner, Appellant.
    Third Department,
    November 10, 1915.
    Eminent domain — condemnation of lands for water supply, city of New York—damage to adjoining owner — award set aside — evidence — expert testimony.
    Appeal by the city of New York from an award for damages caused by an alleged decrease in value of a farm by reason of the condemnation of other lands for a reservoir used in connection with the city water supply. No lands of the plaintiff were taken, but it was claimed that the condemnation of other lands had made access to his property more difficult and had interfered with the sale of the products of his land, etc. . On all the evidence, held, that the plaintiff had suffered no damage, but, on the contrary, that the value of his property had been increased and that the award should be set aside.
    The mere opinion of a witness as to value is worthless when the facts testified to by him show that his opinion is not founded on the facts.
    Appeal by the City of New York from a report and award by Business Damage Commission No. 3 to Benjamin O. Davis for $2,000 for damages for a decrease in the value of his farm situated near Krumville, and also from 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 20th day of April, 1915, confirming said report and award.
    
      Frank L. Polk, Corporation Counsel [William McM. Speer of counsel], for the appellant.
    
      Brown & Slosson [Harrison T. Slosson of counsel], for the respondent.
   Kellogg, J.:

This is a very extraordinary award and rests solely upon the opinions of two expert swearers, one of whom had been sworn in Ashokan Reservoir damage cases 600 or 700 times and the other over 100 times. Their opinions rest upon no substantial facts, and can only be accounted for by the imagination of the witnesses and the assumption that they had acquired the habit of swearing against the city. The city has taken no land belonging to the plaintiff, or in fact any land adjoining his land. The reservoir is in fact in another watershed than the plaintiff’s farm, and the nearest point of the taking line to the farm is about four miles. The farm is quite an ordinary hill or side-hill farm of one hundred and ninety-nine acres, seventy-five acres of which is tillable and meadow land, twenty-five pasture land and ninety-nine wood land. It carries a stock of five cows, four calves, a pair of oxen and a team of horses. Ths principal injury to the farm value, as claimed by these expert swearers, is that the reservoir has changed the line of the railway and has made the station, as they claim, about four or five miles farther away — as the fact is about two miles — and that the plaintiff has lost the benefit of markets, and that upon, the farm was growing about 800 pine, hemlock and poplar trees, from four to ten inches in diameter, and eight or ten years old, which would be worth $2 a cord standing for pulp wood, but that the reservoir has put the pulp mill in the vicinity out of business and, therefore, the growing trees have no value. They each swear that the damage caused to the farm" is $5,000. Much is made of the claim that the plaintiff bought his supplies and provisions at West Shokan, a village about eight miles from his farm, and that one year he sold his hay to a dealer in Kingston who directed that it he shipped to Tannersville or Haines Falls, and that the shipment to Tanners-ville would necessarily be over the Ulster and Delaware railroad, and in a like case he would now he compelled to use the new station rather than the old one on that road. The Commission, in its opinion, says that the plaintiff sold not over sixty bushels of buckwheat and some hay; that the other products were used upon the farm. If the farm in any year had any surplus products, suchas butter, eggs, apples, they were sold in the little hamlets around and were not taken to the railroad station. Evidently the local market, or demand in the immediate vicinity, is the best market. Broadhead’s Bridge, upon the Ulster and Delaware railroad, was the railroad station usually used by the plaintiff. It was six miles from his farm on the shortest route, which was hilly, with a fourteen per cent grade for a mile and a half, and six and one-half miles by the customary route. This station was removed, June, 1913, when the railroad was removed north of the taking line. The nearest station on that road now is Ashokan, which is about eight and óne-half miles distant. The opinion states that the new station is not quite two miles farther from the plaintiff’s property than the old one. The findings show that the city is building a new improved bituminous macadam road to the new station and “that larger loads can be hauled in less time over the new roads than the old roads, and that transportation by road from the real property described in the claim to the railroad station will be more easy with the new roads than the old roads,” but that the new road does not extend the entire distance. It, however, covers practically the entire distance and with a maximum grade of five per cent. Evidently the plaintiff’s means of reaching the Ulster and Delaware railroad are better now than they ever were before, and for practical uses the Ulster and Delaware station is more accessible to him than before.

In the other direction is the New York, Ontario and Western "railroad, with the station of High Falls about eight and one-half miles distant from the farm, with a good road. There is a general store at Krumville, where the plaintiff resides, and several general stores in the little hamlets within a few miles of the property. The church, the school and the post office are at Krumville; a cheese factory is in the vicinity. The farm has been deprived of no substantial advantage which it enjoyed before. The reservoir now occupies the space where many little villages and hundreds of farms formerly were. The people who have been driven from their homes, with their ready money have gone into the surrounding country, and have purchased places and built houses, with the result that there has been a quick and ready sale for property through that part of Ulster county, and probably a greater degree of prosperity and activity than had ever previously been known. There had been no sales of farms in the vicinity of the plaintiff for a great many years before 1906, when the work began, and there was no real market value. It is also admitted that through Ulster county there has been a gradual improvement in the value of ‘ farms in the last ten or fifteen years, in the aggregate from twenty to twenty-five per cent, and apparently in this locality the" greater improvement has been since 1906. The experts swear that in 1906 the farm was worth $13,000, at present $8,000. Clearly if the farm was not injured by the reservoir the natural enhancement of farm values in that vicinity, and the influx of new population and ready money to be invested in farming and farm values, would make the farm much more valuable now than it was at that time. So that the $5,000 that the witnesses estimate as the damages to the plaintiff could not be the real damage on their theory because their estimate entirely ignores the natural increase since 1906 in farm values, and the special increase in these particular localities. The whole evidence makes it clear that the farm is more valuable now than it was in 1906, and that no act of the city has depreciated its value. The little village of Tongore, about three and seven-tenths miles from the property, has increased materially in population and is growing, and the whole country has sustained a substantial improvement, with raised land values.

The only thing which approaches a question of damages is with reference to the pine, hemlock and poplar trees, and that is a mere shadow. The Hudson River Pulp Manufacturing Company, on a little stream about two miles from Brown’s Station and apparently about five miles from the plaintiff’s property, ceased .to operate in 1913. There is no evidence that this change had been upon account of any act of the city of New York. The city’s counsel claimed that the water in the stream runs as usual, and that the shutting down of the mill was from other causes, and the Commission stated that evidence should be produced as to the cause of the shutting down of the mill. No evidence, however, was produced, but in its opinion the Commission concludes that the shutting down of the mill was on account of the acts of the city in building the reservoir. The city claimed it was because the supply of pulp wood in the vicinity had substantially disappeared. No wood from the plaintiff’s land has been furnished to the pulp mill for five or six years. The plaintiff’s father has a saw and heading mill very near plaintiff’s property, and any timber taken from the property was sawed at this mill. The nearest pulp mill now is at Napanoch or Wawarsing, about fifteen miles distant. But from Accord, about six miles from the property, to Napanoch there is a State road. Nevertheless it would cost more to take pulp wood from the farm to Napanoch than it would to the Hudson river mill. The plaintiff says that his timber was young and none had been cut for four or five years, because he thought he would wait a few years. The evidence indicates that this pulp wood has been the growth of eight to ten years. Most of the trees available for pulp wood had been removed from the land prior to 1906, and the trees now in question were then very small. We quote the evidence of one of the experts: Q. And are almost all of the trees that are there now young trees that have grown up in the last seven years * * * A. The majority of them are young trees that have grown for the last perhaps eight or ten years.” In 1908 they could have been of but little value as they were very small. One of the experts concedes on cross-examinátion that on account of their smallness at that time the trees are worth as much now as they were then. Nevertheless both witnesses say, in a general way, that the farm is worth $1,600 less now than it was in 1906, on account of the loss of the market for this pulp wood. The evidence shows clearly that it would be a mistaken policy to cut the pine for pulp wood at the present time, as the growing timber is much more valuable and within a few years the pine timber would be worth many times the present value of the trees as pulp wood. . Evidently the same would be true to a less extent "as to the hemlock. One-half of all the trees alleged to be suitable for pulp wood are pine, a part hemlock and a part poplar. The loss upon the' pine, if now cut, would more than make up any value which could be received from the hemlock and the poplar. The fact that no pulp wood has been cut for several years past, and that the only wood from the farm has been taken to the father’s mill, shows clearly that there is no loss on account of the stopping of operations at the pulp mill. From what took place upon the trial, if it was claimed that the operation of the pulp mill was stopped by the acts of the city, the plaintiff was called upon to prove the fact. We are satisfied from the whole record that the farm has suffered no injury because the pulp mill is closed.

It is urged that a bluestone dealer has been put out of business by the reservoir, and that there is stone upon the property which might reach a market. But it does not appear that the dealer who was put out of business is the only dealer, or that he was buying stone from this farm. The recent sales of blue-stone from the farm had been at Accord and High Falls where there are docks for stone, and that market is still open. The question of loss of markets has no substance, and is a mere excuse by which the swearers seek to bolster up their opinions.

It is needless to go through the whole testimony. A careful perusal of it is convincing that the plaintiff has suffered no possible damage from the acts of the city, but that the results from the building of the reservoir have been in his favor, and his farm is- much more valuable and salable to-day than it was before the city entered upon the enterprise. The pretense that the growing pine and hemlock upon this farm from four to ten inches in diameter has been rendered worthless by the stopping of the pulp mill characterizes the testimony of the experts. .Their opinion, with knowledge of the actual facts disclosed by the record, renders their evidence entirely worthless and no proper basis for an award. We quote from the opinion of the Commission: “Though from necessity the expert evidence in its nature is somewhat vague and inconclusive, it may nevertheless compel and support an award.” The mere opinion of a witness as to value is worthless when the facts téstified to by him show that his opinion has no foundation in fact, The evidence of the experts, fairly considered, laying aside their expression of an opinion as to the former and present value, shows no injury to the plaintiff, and their opinion as to the value, under all of the circumstances, is worthless.

The order confirming the award is, therefore, reversed upon the law and the facts, the award set aside and the matter remitted to another commission.

All concurred.

Order reversed upon the law and facts, the award set aside, and the matter remitted to another commission, the present commission being discharged from further consideration of the claim. If the parties cannot agree upon the commission to hear the claim application may be made to the court. Costs of the appeal to abide the event. The court disapproves of the finding of fact that the claimant’s property has been indirectly decreased in value by reason of the acquiring of lands by the city of New York and that the amount of damages of said claimant for said decrease in value is the sum of $2,000.  