
    In the Matter of Hubert O. Thompson, as Commissioner.
    
      (Court of Appeals, Second Division,
    
    
      Filed October 6, 1891.)
    
    1. Appeal—Question op pact.'
    The fact that an appeal to this court is permitted does not bring up for review a question of fact arising upon conflicting evidence, and this court
    
      has no jurisdiction to review the decision of the general term unless error of law in the proceedings he found.
    .2. Evidence — Award of commissioners for land taken — Value of
    WATER POWER.
    The value of property, such as a water power, which is dependent upon locality, adaptability for a particular use, as well as the use of property immediately adjoining, may not be shown by evidence of the price paid for similar property.
    Appeal from an order of the general term of the supreme -court, second department, entered May, 1889, affirming an order of the special term, which confirmed the report of Gideon W. ■ Davenport, Matt H. Ellis and Charles C. Leary, commissioners appointed to assess the damages causad to claimant by reason of the diversion of the waters of the Bronx river by the mayor, aldermen and commonalty of the city of New York.
    
      William Allen Butler and Willard Parker Butler, for app’lt; Arthur H. Hasten, for resp’t.
   Parker, J.

— This proceeding was brought pursuant to the powers conferred on the commissioner of public works of the city of New York, by chap. 445 of the Laws of 1877, and the various acts amendatory thereof, to acquire the right to divert, and keep diverted from the Bronx river, all the water of the river north of and above the dam at Kensico.

The commissioners awarded to the claimant, who was the owner of a large and valuable farm through which the river ran, damages in the sum of $7,270.

From the order confirming such report, and award,, successive appeals have been taken by the claimant to this court, the latter appeal being especially authorized by the act of 1877.

But the fact that an appeal to this court is permitted does not bring up for review a question of fact arising upon conflicting evidence, and this court has no j arisdiction to review the decision of the general term, unless error of law in the proceedings be found. Matter of Thompson, 121 N. Y., 277 ; 30 N. Y. State Rep., 998.

That case had its origin in proceedings taken under chap. 490' of the Laws of 1883, but the provision permitting an appeal to the court of appeals is the same as in the act authorizing the proceedings before us, and the decision cited is therefore applicable and controlling.

Unless then some error of law requires a reversal, the decision of the general term must stand.

The only exception to which our attention is called relates to an effort on the part of the owner to prove what had been paid by the petitioner for water rights appurtenant to a neighboring parcel,.on the same river. At folio 7467 the counsel for the owner offered to prove that the city of New York purchased from Bobert White the right to divert the. waters from one-half of the water shed of the Bronx river, and paid him the sum of $21,991.66, for such rights, and his privileges in connection with a certain mill, upon what is known as the Powder Mill property at Scarsdale. The commission declined to rule on the offer, at the same time, "by its chairman, saying, in effect, that a ruling would be made as the evidence should be presented. In that connection no other evidence was offered, and the exception then taken is of course not available. But in view of the stipulation making the evidence as to all parcels applicable to any other, it is claimed that this appellant is entitled to the benefit of any exception taken to the rejection of evidence bearing on the question of the value of his water power. We shall assume without deciding that this claim is well founded.

Robert White was vested in fee with the riparian ownership in such premises at the time of the commencement of the proceedings to acquire title by the city. Pending the proceedings he died. Subsequently, pursuant to an agreement with his heirs, a conveyance was made to the city.

Respecting the manner in which the proof was sought to be made, the owner offered in evidence the deed, which expressed a consideration. But for the purpose of proving the price paid, it was not competent. People ex rel. Mayor v. McCarthy, 102 N. Y., 630; 2 N. Y. State Rep., 546.

One or more witnesses were asked to state the sum paid, and as the objection went solely to the competency of the evidence for any purpose, it must be assumed that the witnesses were competent to answer the question.

And the question then is, was the rejection of the evidence as to the amount paid by the city for the White water power error for which a reversal should be had? This question has been presented to the courts of last resort in several of the states, but not with the same result.

In Massachusetts, New Hampshire, Illinois, Iowa and Wisconsin it is held that actual sales of other similar land in the vicinity, made near the time at which the value of the land taken is to be determined, are admissible as evidence for the purpose of arriving at' the amount of compensation. Gardner v. Brookline, 127 Mass., 358; Culbertson & Blair Packing Co. v. City of Chicago, 111 Ill., 651; Town of Cherokee v. S. C. & I. F. Town Lot & Land Co., 52 Iowa, 279; Concord R. R. Co. v. Greely, 23 N. H., 242; Washburn v. Milwaukee & Lake Winnebago R. R. Co., 59 Wis.,. 364.

While in some of the other jurisdictions, notably Pennsylvania, New Jersey, Georgia and California, it is held that sales of simi lar property are not admissible for the purpose of proving the value of property about to be taken. East Pa. R. R. Co. v. Hiester, 40 Pa. St., 53 ; Pa. R. R. Co. v. Bonnell, 81 id., 414; Pa. S. V. R. R. Co. v. Ziemer, 124 id., 560; Montclair R. R. Co. v. Benson, 36 N. J. Law, 557; C. P. R. R. Co. v. Pearson, 35 Cal., 247-262; Selma, etc., R. R. Co. v. Keith, 53 Ga., 178.

The reasons assigned for the conclusion reached in the cases-last cited are, in the main, that the test in legal proceedings is, what is the present market value of the property which is the subject of controversy. It may be shown by the testimony of competent witnesses, and on cross-examination, for the purpose of testing their knowledge respecting the market value of land in that vicinity, they may be asked to name such sales of property, .and the prices paid therefor, as have come to their attention. But & party may not establish the value of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit •of cross-examination to show that one or both were mistaken.

If some evidence of value, then prima facie a case may be made out so far as the question of damages is concerned by proof of a single sale, and thus the agreement of the parties, which may have been the result of necessity, or caprice, would be evidence of the market value of land similarily situated, and become a standard by which to measure the value of land in ■controversy. This would lead to an attempt by the opposing party to show, first, the dissimilarity of the two parcels of land, and second, the circumstances surrounding the parties which induced the conveyance. Such as a sale by one in danger of insolvency, in order to realize money to support his business, or a .sale in any other emergency which forbids a grantor to wait a reasonable time for the public to be informed of the fact that his property is in the market Or, on the other hand, that the price paid was excessive and occasioned by the fact that the grantee was not a resident of the locality nor acquainted with real values, and was thus readily induced to pay a sum far exceeding the market value.

Thus each transaction in real estate claimed to be similarly .situated might present two side issues, which could be made the subject of as vigorous contention as the main issue, and if the transactions were numerous, it would result in unduly prolonging "the trial and unnecessarily confusing the issues, with the added disadvantage of rendering preparation for trial difficult.

Our attention has not been called to a case in this court where •the question has been passed upon in the manner here presented, but there are a number of decisions indicating the tendency of the court to be against proving value by evidence of the selling price of similar property.

In Huntington v. Attrill, 118 N. Y., 365 ; 29 N. Y. State Rep., 5, the defendants attempted to prove the value of certain seaside property by showing the value of other property of the same general character situated in different places, and Judge Bradley, •speaking for the court, said, “ It may be that such evidence would have furnished some guide for estimate of the value of the prop•erty, but might not. Such evidence would present collateral issues, which might, and very likely would, involve a variety of considerations having relation to similarity or difference and to •■advantages and disadvantages of the different properties in numerous respects as compared with that in question. It is quite well settled that evidence of that character is not admissible upon the •question of the value of property in controversy.”

The question was not necessarily before the court in Mayor v. McCarthy, 102 N. Y., 630, 638; 2 N. Y. State Rep., 546, but Ch. J. Euger, referring to the question whether the price paid on sales of real estate between individuals is admissible as evidence of value, said: “ We think it quite clear, however, that such price is not in any view competent evidence of value.”

In Blanchard v. N. J. Steamboat Co., 59 N. Y., 292, the defendant attempted to show the value of a sunken steamboat by proving the value of other steamboats with which she could be compared, and it was held that the evidence was not competent..

In Langdon v. The Mayor, 59 Hun, 434; 37 N. Y. State Rep.,. 99, the objection was that other evidence should be produced to establish the fact sought to be proven (page 439), so that the question of the relevancy of the evidence was not before the court. We are of the opinion that the value of property which depends upon the presence or absence of inherent qualities not necessarily present or absent in other and similar property cannot be proved by showing the price paid for such other and similar property.

The value of property having a recognized market value, such as number one wheat and corn, may of course be proven by showing the market prices; but the value of property which is dependent upon locality, adaptability for a particular use, as well as the use made of property immediately adjoining, may not be shown by evidence of the price paid for similar property.

Even under the Massachusetts rule, a reversal would not be justified because of the extent of the discretion vested in the judge or officer presiding at the trial to determine whether such evidence is admissible, depending, of course, on various elements, such as the nearness or remoteness of the time of sale; whether the premises are far separated; the condition of the property about the parcel sold, and the use made of it, which may have operated to enhance or diminish its selling value; the similarity of the property, not only as to description, but as to its availability for use. Chandler v. Jamaica Pond Aqueduct Corp., 122 Mass., 305; Gardner v. Brookline, 127 id., 358-363, and cases cited.

In point of time, the White sale was a year and one-half prior to the date when the offer was made to prove it.

The White water power was in actual use in the operation of a mill, while the water power of Mr. Butler had not been utilized in any degree whatever. True, as much water will be diverted from the Butler property as the White property, but it does not follow that the respective water powers are of equal value.

The value of a water power depends on its availability for use. And, as a matter of common observation, at certain points along a stream the water power can be more readily and cheaply made available for industrial purposes than at others.

So if appellant’s contention as to the admissibility of evidence of that character could be allowed, we should necessarily reach the conclusion that the nature of the evidence offered as to similarity was not of such a character as to authorize a court to hold, as a "matter of law, that the commission improperly exercised then-discretion in refusing to admit proof of the price paid for the White parcel.

The appellant asserts that the commission refused to award damages for the injury to the claimant’s water power, and insists that in so doing they committed an error in principle which may be reviewed in this court.

After a thorough examination of the record and a careful consideration of the argument in behalf of appellant, the conclusion is reached that this court is not warranted in determining that an award was not made for such damages as, in the judgment of the commission, the claimant will sustain because of injury to his water power.

The claimant owned about 358 acres of land, coveting 4,238 feet on the east bank of the Bronx river, and about 4,636 feet on the west bank, and for the reduction in the volume of water which naturally flows over this course, occasioned by the diversion on the part of the city, the commission awarded to him $7,270. This award was made in gross, no items being given, and it is, therefore, impossible to determine what portion of it was allowed for injury to the tract, because of the lessening of the flow of the stream, or what part of it was an award for damages to the waterpower.

Neither in the report, nor in the conduct of the trial, is there any indication that it was determined that the water power was of no value. On the contrary, the commission received a large amount of expert testimony, offered by the claimant, tending to-show that the water power was of considerable value.

No evidence in that direction was rejected, save that which tended to prove the price paid by the city for the White waterpower. And it should be assumed that they gave to this evidence such weight as it was entitled to. Claimant’s experts, it is true, testified that the water power alone was of far greater value than the entire amount of the award, but on the other hand the evidence on the part of the city tended to show that it had little or no value.

In making their appraisal they were not required to adopt the estimate of claimant's experts, but were manifestly called upon to base their award upon all the information obtained “not only from the evidence produced before them, but from their view of the real estate.” Matter of Thompson, 121 N. Y., 277 ; 30 N. Y. State Rep., 998. This we are bound to assume in the light afforded by the record was done.

Our attention is called to the expressions of opinion both at-special and general term, to the effect that the water power has no apparent value. But it does not follow that such was the determination of the commissioners nor can it be assumed because of the opinion of the judges sitting in review that the commission entertained the same view.

There are no other questions requiring consideration. The order should be affirmed.

Order affirmed, with costs.

All concur. 
      
       Affirming 14 N. Y. State Rep., 522; 24 id., 433.
     