County of Orange v. Storm King Stone Co.

Putnam, J.: The provisions of the General Condemnation Law (Code Civ. Proc. chap. 23, tit. 1) supplement statutes to acquire land for highways. (County of Orange v. Ellsworth, 98 App. Div. 275,280.) The Condemnation Law does not allow appeals from interlocutory judgments, and such is this judgment appointing commissioners. (Erie R. R. Co. v. Steward, 59 App. Div. 187; Village of St. Johnsville v. Smith, 61 id. 380; Stillwater, etc., R. Co. v. B. & M. R. R., 67 id. 367.) The only ground to review such an order by a separate appeal before the commission should report, would be where it plainly appeared that the taking was not for a permitted public use, or was otherwise in excess of the right of eminent domain. (Matter of City of Rochester [In re Neun], 102 App. Div. 99.) The Legislature has devolved on the highway officials ample powers, not only in the laying out of highways, but afterwards for the construction, improvement and maintenance thereof. Section 148 of the Highway Law divides these superadded powers that follow the original laying out and condemnation of a highway into two groups. One is to acquire more land as a source to obtain road material, such as the taking of a gravel bed or stone quarry. The other is to get a place for excavated material, debris or rubbish, which is described by the engineering term “ spoil bank,” defined by the Century Dictionary [revised ed.] as “a heap of earth or stone excavated from a railway or other cutting and not needed for an adjacent filling. ’ ’ If the determination of the State Commission of Highways in this matter be not strictly controlling, still great weight should be given to such a conclusion by the State authority, which is charged with the duty to administer this statute. We cannot, therefore, pronounce this an improper application for land, or hold that excessive powers have been arrogated, so that on its face the petition should have been rejected. This conclusion in effect takes away our power to entertain the defendants’ appeal from so much of the order as appoints commissioners. [211] In the paragraph of the judgment or order numbered 10th was a direction that in ascertaining this compensation allowance should be made for the fact that in prior condemnation proceedings for the right of way of this highway the Storm King Stone Company had received compensation for the consequential -injury to the residue of its property, which residue included the premises sought to be acquired herein. The judgment had properly provided that the present taking shall be subject to any rights, easements or privileges in the land which plaintiff had heretofore acquired. To that extent the commissioners would consider such acquired rights under the prior condemnation. But the above language might leave them bound to consider and follow a prior appraisal, and thus not to decide and fix the damage to the property as of the time of the taking, and in its then condition, which is the rule in such condemnation: Hence this provision requiring the commissioners to make an allowance for the prior consequential damages recovered for this property was error, and, therefore, all the 10th paragraph after the 4th line should be stricken from the judgment. A like modification should be made in the decision, as respects the finding of fact numbered XI, and the 10th conclusion of law. • Therefore, the appeal from so much of the order appointing commissioners is dismissed, without prejudice to a future appeal from the order of confirmation under section 3375 of the Code of Civil Procedure; but the 10th paragraph of the judgment, with the corresponding parts of the decision, are stricken out, without costs of this appeal to either party. Jenks, P. J., Thomas and Mills, JJ., concurred; Blackmar, J., read for reversal and dismissal of the proceedings, with costs.