
    The New York Central and Hudson River Railroad Company, Respondent, v. Fielding L. Marshall and Others, as Executors of and Trustees under the Last Will and Testament of Susanna P. Lees, Deceased, and Others, Appellants.
    First Department,
    July 15, 1907.
    Eminent domain — access to water front— condemnation of easement— award.
    When the owner of two strips of land divided by a railroad has reserved by • deed the right of access from one strip to the other which constitutes a water front, an'award made on the subsequent condemnation of the water front by the railroad should include compensation for the loss of access to the water. This, irrespective of section 32 of the Railroac^ Law requiring a railroad to maintain farm crossings, etc., for its application to .access to water ways is problematic and" is not equivalent to an absolute right reserved by deed..
    Appeal by the defendants, Fielding L. Marshall - and others, as execútors ■ and trustees, etc., and others, from an order of the Supreme Court,-made at the New York Special Term "and entered in -the office of the clerk of the county of' New York on the 25th day of January, 1907, confirming the report of commissioners of estimate and assessment. •
    
      Howard R. Bayne, for the appellants.
    
      George H. Walker, for the respondent.
   McLaughlin, J.:

This proceeding was instituted to acquire by condemnation a strip of land about 11 feet wide and 523 feet long, situate in the borough of the Bronx, New York city, alongside of two lines of railroads leased to and operated by the plaintiff. The land in question was owned by the defendants, and the commissioners appointed to ascertain and appraise the compensation to be made to them reported that there should be paid the sum of $3,507.60. It is from the final order which confirmed this report that this appeal is taken.

The material facts are practically undisputed. The defendants owned a tract of land along the east side of the railroad, a portion of which was the strip in question. They also owned the land directly across and on the west side of the railroad, a tract of substantially the same length and. extending west about 140 feet to the bulkhead line of the Harlem river — the two parcels having been originally a single tract before the conveyances to the plaintiff’s lessors of the land now occupied by the railroad.. These conveyances reserved to the grantors certain rights of access and crossing over •the land conveyed between the property along the river and that on the upland.

The appellants’ contention is that the effect of the acquisition by the plaintiff of this strip of land along the river over which they have no light to cross is to'deprive them of the right of access to the water front property from the parcel on the other side of the tracks and that they were' entitled to the consequential damages resulting — being the difference in value of the property along the river as it was before the strip was taken in this proceeding, and as it is now with the right of crossing cut .off.

It is evident that the award made included nothing but the value of the fee of the land taken, for the only witness who testified as to the value of the land estimated the fee alone at exactly the amount awarded, and a letter signed by the chairman of the commission expressly so'stated — the attorney for the plaintiff consenting that this letter be attached to and. filed with the report.

The respondent seeks to justify the award on the ground that the opinion of the defendants’ witness as to the consequential damage to-the property along the river was. purely speculative and formed no basis for an award for consequential damages, and the 'rights -of crossing reserved in the conveyances before referred to areno greater than those secured by section 32 of :the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676)..

It is, true the property lying on the west of the railroad is entirely unimproved and for the most part under water, and it may be-difflcult to determine to what extent it has beén depreciated in value, but that is no reason why an award should not bemade. ' That its value would be more with the right of such access than without it is- clear, and it is also clear -that the rights reserved in such conveyances have been destroyed.- It is no answer to the assertion that the .plaintiff should be awarded the consequential. damages which naturally and legitimately flowed from the destruction of these rights . to say that section 32 of the Railroad Law (as amd. supra) secures -to the defendants access to this-strip; - This section, which provides that'every railroad corporation shall erect-and maintain “fences on the sides of its road of.height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent' lands, with farm crossings and openings with.gates therein- at such .farm crossings whenever and wherever .reasonably necessary.for the use of the owners and occupants of'the adjoining lands,” apparently applies only to cases where the railroad intersects farming lands. In Buffalo Stone & Cement Co., v. D., L. & W. R. R. Co. (130 N. Y. 152), cited by the respondent as showing- this section to be applicable to the 'casé at bar, the land for which the crossing was sought was. a farm upon which stone quarries had been opened.

, The court,,in construing a similar statute, said:. “The statute does not limit the right of adjoining owners to crossings'solely for agriculttiral purposes, but they may be ordered-to enable owners to remove the natural products of the land, like otone and minerals.” In the case nów. before'us no such situation exists,-and it may well 'be doubted whether the statute applies to such property, and if it does I have, very serious do’ubts as to whether, if the defendants should" desire a crossing-for the ptirposé of establishing'communication' with docks and piers which may. be hereafter constructed along the - ■ river front, they could obtain one under this statute; Obviously a doubtful statutory right of this kind is not equivalent to the right which they had through deeds of conveyance. One was absolute . and the other is at least problematical.

The principle upon which compensation is to be awarded to an owner, part of whose lands are taken under condemnation proceedings, is that he shall receive the value of the land taken and a fair and adequate compensation for the inj ury to the residue. '(Newman v. M. E. R. Co., 118 N. Y. 618, and cases cited; South Buffalo R. Co. v. Kirkover, 176 id. 301.) In the South Buffalo R. Co. case it was sáid: “ Considering the principle involved, unembarrassed by legal decisions, it is reasonable that where the State, in the exercise of the right of eminent domain, sees fit to take the property of the citizen without his consent,- paying- therefor such damages as are the result of the taking, the commissioners in the condemnation proceedings should not only be permitted but required to award the owner a sum that will fully indemnify him.as to those proximate and consequential damages flowing from this act of sovereign power.”

What the award should have been we do not, of course, pretend, to say ; but the defendants must .have sustained some consequential damage by- reason of the condemnation of this land, since it virtually destroyed easements secured to them by deed, and some compensation should have been made' therefor. Any other' conclusion would result in the taking of property or property rights through condemnation proceedings without making compensation to the owner.

The order appealed from, therefore, must be reversed and the matter remitted to the commissioners to proceed in accordance with the views herein expressed, with costs and disbursements to the appellants.

Ingraham, Clarke, Houghton and Lambert^ JJ., concurred.

Order reversed and matter remitted to commissioners’tó proceed ill accordance with-the views- expressed in opinion, with costs and disbursements to appellants.  