
    In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo, Appellants, for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of and Parties Interested in Lands Which May Be Injured by the Change of the Grade of Van Rensselaer and Roseville Streets and Claimed to Be Owned by Peter Rehorn and Others, and Anselm Hoefner and Erie Railroad Company, Appellants. (Proceeding No. 64.)
    Fourth Department,
    December 28, 1906.
    Eminent domain — condemnation of lands for grade crossing one occupying land under a municipal license entitled to award.
    On a proceeding to ascertain the compensation to he paid owners of lands taken for a grade crossing in. the city of Buffalo it appeared that the owner had a soap factory, part of which was located on both sides of a strip of land owned by the city and part of which was located on the city property by virtue of a municipal license granted by the common council. The effect of the condemnation was to render the whole plant useless for soap manufacture.
    
      Held, that the owner was entitled'to compensation for the damages done the real estate owned by him and to the buildings and machinery erected thereon, and also for the damages to the building and machinery erected on the city property under the municipal license;
    That., although said license was'revoeable, the occupant was entitled to damage in the absence of proof that the license had been revoked;
    That, as. the buildings constituted one manufacturing plant, the owner was entitled to damagé to property not abutting directly on the grade crossing.
    ' Appeal by Anselm Hoefner from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie- on the 2d day of June, 1906, which confirmed the original and supplemental reports of commissioners of appraisal appointed pursuant to the provisions of section 9 óf chápter 345 of the Laws of 1888, as amended by chapter 255 of the Laws of 1890, and chapter 353'of the Laws of 1892, and which awarded the appellant Hoefner $37,684.83, the ground of this appeal being that the damages awarded were- inadequate.
    Also, an appeal by the petitioner, The Grade Crossing Commissioners, and the Erie Bailroad Company, from so much of said order as awards to the defendant Hoefner $10,358.43 -for damages done-to buildings and fixtures erected and owned by him, situate On property belonging to the city of Buffalo, known as the Mill Bace strip, and $3,512:06 for damage done to premises owned by Hoefner situate north of the north line of the Mill Bace"strip, so called, but not abutting upon Yan Bensselaer street and not described in the petition, , . . ■
    The proceeding was commenced on the l-6th day of -Hoyember, 1903, by the presentation of the duly verified petition of Augustus-F. Schen, chairman of the grade crossing commissioners of the' city of Buffalo, praying for the appointment of .commissioners of appraisal pursuant to section 9 of chapter 345 of the Laws of 1888, as amended by chapter 255 of the Laws of 1890, and chapter 353 of the Laws of 1892, to ascertain the. compensation to be paid to the owners of and parties interested in lands which may be injured by the'change of grade of Yan Bensselaer and Boseville streets in said city, which change and'improvement were determined upon pursuant to the provisions of said act. In accordance with the prayer of such petition, commissioners of appraisal were duly appointed and after hearing the -allegations and the testimony offered by the respective parties, determined that the total damages, sustained by the appellant Hoefner because of such improvement were $37,684.83, and they so reported. By a supplemental report.required" to be made upon motion. of Hoefner, said commissioners stated the items which made up said total award; that, the damage to the land wag $9,277.37; that.'the damage to the buildings.and fixtures situate, on the land owned' by Hoefner south of the south line of the mill race was $14,536.97; to the buildings and fixtures situate on, the mill race property, $1(3.358.43, and to the buildings and fixtures situate on the property owned by the appellant Hoefnér "north of the" north line of the mill race and which, did not abut upon Yan Bensselaer. street, $3,513.06. Such original and supplemental reports were confirmed and the order appealed from duly entered.
    
      Adolph Rebadow, for the appellant Hoefner.
    
      De Witt Clinton, for the appellants The Grade Crossing Commissioners.
    
      William L. Marcy, for the appellant Erie Railroad Company.
   McLennan, P. J.:

Two questions are presented by these appeals, first, does the award fairly measure the damages sustained by the appellant Hoefner and which he was legally entitled to recover because of the improvement in question % and, second., was he legally entitled to recover damages to the buildings and fixtures situate on the Mill Race strip, the title to which was in the city of Buffalo, and damages resulting to the land and buildings and fixtures situate thereon owned by him, located immediately north of the Mill Race strip, no part of which abutted upon the streets the grade of wliich was changed by the improvement %

The appellant Hoefner is the owner of a parcel of land which abuts upon and is situate on the westerly side of Yan Rensselaer street, in the city of Buffalo, H. Y., which is described in the petition herein as follows : “ Beginning at a point in the west line of Yan Rensselaer street 190 feet north of the north line of Roseville street; thence running westerly at right angles 200 feetthence northerly at right angles about 65 feet to the south line of the Mill Race; thence northeasterly along said south line to the west line of * Yan Rensselaer street; thence southerly along said west line 126 feet to the place of beginning.”

The Mill Race mentioned in said description consists of a strip of land forty feet wide extending from Yan Rensselaer street westerly, forming the northerly boundary of appellant’s property above described, and running at such angle that while appellant’s property has a frontage of one hundred and twenty-six feet on Yan Rensselaer street its width in the rear is only sixty-five feet. Ooncededly the title to the strip known artd described in this proceeding as the Mill Race is owned by the city of Buffalo. The appellant Hoefner is also concededly the owner of a triangular piece of land situate ' northerly of and extending along the north line of the Mill Race property, but no part of it abuts upon Van Rensselaer street.

The entire premises owned by Hoefner, including the buildings and machinery erected thereon,, together with the buildings and machinery erected upon the Mill Race property, so called, were • used and occupied by-liim as a soap factory, the business conducted' being extensive and profitable and the location well adapted to the prosecutioniof such business. The northwest corner of one of the principal buildings of IToefner’s plant, which abutted upon Van Rensselaer street, extended upon a portion, of the Mill Race property,. Another of the principal buildings erected by Hoefner practically occupied the Mill Race property, except that the northwest and ■ southeast corners of the building extended over and upon his own lands.. On the triangular piece of land owned by him north of the Mill Race property he had erected certain buildings and installed certain machinery which became a part of his manufacturing plant, but such lands situate north of the Mill Race property did not abut, upon Van Rensselaer- street. Other buildings and structures had been erected partly upon the lands owned by the appellant and partly upon the Mill Race property, but all of .which were used in connection with and formed á part of his soap factory plant.

The license or permission to Hoefner to occupy the Mill Race strip, -owned by the city of Buffalo was. given by resolution of its common council, and by the several resolutions of such body -lie was given permission to erect the-buildings in question thereon, and also permission- to encroach upon such Mill Racé strip by the other buildings erected by him. We must assume, however, under the evidence,, that such permit dr permits were revocable at the option of the city of Buffalo; but there was no- act indicating an intention on the part of the city of Buffalo to' revoke such license or permits or to indicate that- they might not continue in the future as in the past. Indeed, the city of Buffalo does not appear and urge upon this appeal that the license granted to Hoefner to occupy and use the Mill Race strip had been or would be revoked. ,

The evidence very "conclusively establishes that the change of grade in Van Rensselaer street practically-destroyed the value' of Hoefner’s plant as a soap factory, and that there is no other use .to ydiieh the buildings and machinery connected therewith can reasonably be put. The plant as a soap -factory being destroyed, the buildings and machinery used in connection therewith are practically of no value. •

Under these circumstance we think the appellant Hoefner was entitled to such an award as would compensate him for the damages done to the real estate owned by him abutting upon Yan Rensselaer street and to the buildings and machinery erected thereon, and also for such damages as resulted to the buildings and machinery erected upon the property of the city with its consent and acquiescence, even taking into consideration that such consent was revocable at will; and also for such damages as resulted to the real estate owned by him north of the Mill Race property and to the buildings and machinery erected thereon, although 'not abutting upon Yan Rensselaer street, all of which machinery and structures referred to were used as and were a part of one plant and were all suitable and necessary in the conduct of a single business...

We think this conclusion is not in any manner at variance with the decision called to our attention by the appellants, the Grade Grossing Commissioners and the Erie Railroad Company. (Matter of Grade Crossing Commissioners, 66 App. Div. 439.) In that_ case it was simply held that in such proceedings the city of Buffalo could not recover damages under and- by virtue of the Grade Crossing Act for injury done to property owned by it. That authority would apply in this case if the city of Buffalo were asking damages resulting to the Mill Race strip, and, of course, would bar recovery of. such damages. But we do not understand that it has any application to -the case at bar, where the city of Buffalo is not appealing or asserting its right to terminate the license given by it to Hoefner. The grade crossing commissioners, the Erie Railroad Company, or any other corporation interested under the provisions of the act, cannot urge that the grant or license given by the city of Buffalo is valueless simply because it might terminate the same at will, when there is no indication on the part of such city that it intends to revoke the samé.

The case at bar is clearly distinguishable from the cases decided by this court in which it was held that an owner of a piece of property abutting upon a street upon whicji an improvement is determined to be made under the provisions of the Grade Crossing Act, is not entitled to recover the damages,to another piece of property owned by him, but separated from the former by a public street and which is not used as'a part of or in connection with the .premises abutting upon such street. .

We are constrained to hold that under the act in question, where one parcel of real property abutting upon a street is owned by an individual or corporation, and another piece of property not abutting on said street is used in connection therewith and as a whole in the prosecution of a business, that the owner of property abutting upon such street may recover not only for damages, done to such real estate owned by him. abutting upon such street, and to the buildings and ihachinery erected thereon, but also for the damage done to the parcel not so abutting, where, as before said, the whole is used as one plant and is necessary in the conduct of a-si'ngle business.

-- We conclude,-therefore, that the appellant Hoefher was entitled to such damages ,as he sustained because- of the depreciation in the value of the premises owned by him which abutted upon Van Rensselaer street5 also for th¿ depreciation in the- value of .buildings erfected by' him upon the Mill. Race1' strip resulting from ' such improvement, the fact to be taken into consideration that the license' tinder which- he erected, such buildings might be terminated’ at will, and also that he was entitled to compensation for the depreciation in . the value of the triangular piece of land which' he owned,, although not abutting upon Van Rensselaer street, and. for the depreciation in the Value of the buildings ' and machinery thereon, which were used in connection with and'as a part of the plant and premises which did abut upon such street.

These conclusions leave for our consideration only the question as as to whether the sum awarded was sufficient to compensate the appellant-Hoéfner for the- damages sustained in the premises.

From a Careful examination of the evidence we are hot satisfied that the award made to the appellant Hoefner- fairly compensated him for the damages which resulted to his property because of the improvement in question, and, therefore, have concluded that a .new appraisal should be had before other commissioners. Under-'such cir0umstanc.es we deem it unwise to point out or indicate the items, which .in our j'udgmeut should be increased, or to suggest, even approximately, what in our' opinion the award should be, aé we would not wish to in any manner influence the judgment of the commissioners who are to he appointed and whose duty it will be to determine the amount of the award, not only from the evidence which may be offered before them, but álso from a personal inspection of the premises, which, under the law, they are required to make. But we think justice requires that the parties have an opportunity to retry the issues of fact relating tó this piece of propk^y, independent of the issues which relate to the many" other parcels of land described in the petition.

The order appealed from should be reversed and the report as to parcel Ho. 9 set aside and -the matter sent to other commissioners-to be appointed at Special Term, with costs to the appellant Hoefner in case the award of the new commissioners appointed herein is in excess of the award from which this appeal is taken; if not, then such costs to be paid by the appellant Hoefner.

All concurred, except Williams and Kruse, JJ., who dissented.

Order reversed and report set aside so far as the same relates to the parcel designated in the petition as Ho. 9, and matter sent to other commissioners to be appointed by the Special Term, with costs to the appellant Hoefner in case the award of the new commissioners exceeds the award from which this appeal is taken; if not, then costs of this appeal to be paid by said appellant Hoefner.  