New York State Court of Claims

New York State Court of Claims

OSTERHOUT v. THE STATE OF NEW YORK, #2000-004-013, Claim No. 99800


Synopsis



Case Information

UID:
2000-004-013
Claimant(s):
OSTERHOUT FAMILY LIMITED PARTNERSHIP
Claimant short name:
OSTERHOUT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99800
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
FLOWER, MEDALIE & MARKOWITZBY: Donald Markowitz, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: Martin RowleyAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
Noember 30, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a timely filed, unassigned Claim for the partial appropriation of premises owned by the Claimant, located in the Town of Windsor, Broome County, in a proceeding entitled "BINGHAMTON-WINDSOR, PART 3 STATE HIGHWAY NO. 5148 BROOME COUNTY". The parties stipulated that the appropriations occurred on June 2, 1998, that the total acreage of the subject property on the date of the appropriations was 17.4578 acres and that the total acreage of the subject property after the appropriations was 15.4378 acres. The parties also stipulated that the Claimant was the owner of the property as of the date of the appropriations and that the amount of claimed damages be increased from $500,000 to $1,200,000 (
see, So Ordered Stipulation, filed in the Clerk's office on March 22, 2000).

The subject property bordered the south side of New York State Route 17 and enjoyed approximately 818 front feet along that highway. New York State Route 17, in the area of the subject property, was a four lane highway with two eastbound and two westbound lanes, divided by a center median. The subject lot was basically rectangular with an overall depth of approximately 940 feet. (St. Ex. A, p 37) In the area of the subject property, Route 17 sloped downward from west to east. (
see, Cl. Ex. 1, photographs, p 25) This slope or downgrade was relatively uniform. Opposite the point where the west property line of the subject property met the south boundary of Route 17 the highway was at an elevation of approximately 1,354 feet, whereas at the east property line intersect, it was approximately 1,314 feet, a drop of approximately 40 feet over the 818 foot frontage distance. The subject lot sloped downward from its high point at the northwest corner to its low point at the southeast corner. The elevation at the northwest corner was approximately 1,348 feet and at the southeast corner approximately 1,254 feet, a drop diagonally across the lot from northwest to southeast of some 94 feet over a distance of some 1,250 feet.[1] The drop across the lot from the northwest to the southeast was not uniform. The northwest corner of the lot, where the sole improvement on the subject property, a residence, was located relatively level, as was the case in the southeast corner of the lot. There was also a downgrade or downslope along the subject Route 17 frontage, (other than at the extreme northwest corner of the subject lot) which was somewhat pronounced, the change in elevation being generally from 10 to 15 feet over a horizontal distance of some 20 to 30 feet. (St. Ex. B, Alternate Plan A) Most of this drop off was within the existing highway right of way. A stream crossed the southeast corner of the lot from the southwest to the northeast. The Court estimates that something over one-half acre of the total 17.4578 acres was located to the southeast of the stream.

A guide rail traversed the subject's frontage on the south side of Route 17, within the States' existing right-of-way, except for two breaks or openings. The first break in the guide rail was at the extreme northwest corner of the subject property, at a point where the driveway which serviced the residence adjoined the Route 17 right-of-way. (
see, Cl. Exs. 8 and 10; St. Ex. A, p 17, middle photograph) It appears that this break in the guide rail was about 30 to 35 feet wide. (see, St. Ex. B, Alternate Plan A) There was a second break in the guide rail further to the east along Claimant's frontage, which the Court finds was something on the order of 12 to 13 feet wide. (see, St. Exs. I and J and St. Ex. B, Alternate Plan A) This latter break in the guard rail was the subject of some disagreement. According to Raymond L. Osterhout, a representative of the Claimant who testified at the trial, it serviced a driveway which went "all the way across the property to the back, which would be the southern most portion".[2] He was asked, with regard to this driveway, "Is there any type of drainage ditch or drainage swale there?" and he responded, "Not where the driveway is, there is one above it". In the State's appraiser's view, this break did not service a driveway. Rather, he opined that "it is a drainage opening that extends under both the east lane of Route 17 and the west lane of Route 17 to a point on the north side of Route 17, which there was a drainage ditch that moved under the highway and exited just...south of the eastbound lane at this particular point". When Mr. Osterhout was initially asked about this break in the guide rail, he was shown Claimant's Exhibit 10, a photograph, and asked if the break in the guide rail under discussion "appears in the background" and he responded, "Yes". It does, but barely, on the left/center of the photo. This is the only photograph of that break submitted as a part of the Claimant's proof and, as it turned out, it was a photograph removed from the Claimant's counsel's copy of the State's appraisal, in evidence as State's Exhibit A. There is no close-up photograph of this break in either appraisal, and the photographs in evidence that do show the opening (St. Exs. I and J) were obviously not taken for that purpose. Nonetheless, these two photographs clearly demonstrate that, although Claimant and others may have been able to obtain access to the subject property through the break, it was rarely used for access. An examination of the State's engineering expert's topographical map and the report he compiled on the subject (St. Ex. B) show two things relative to this opening in the guide rail. First, as one moved to the south, away from the state right of way, the elevation of the land dropped sharply - - a vertical drop of 20 feet over a horizontal distance of 100 feet. Second, in the narrative portion of the report there appears the following: "A 0.23 acre designated Federal Wetland exists near the center of the North boundary" of the subject with Route 17. (St. Ex. B, p 3) That 0.23 acre wetland area is shown on the engineer's topographical map as an area outlined with a broken line interspersed with boxes enclosing the initials "FW". The wetland area was about 100 feet to the southwest of the guide rail break. The wetland area does not appear on the appropriation map. Claimant's appraiser wrote that the "Code Enforcement Officer for the Town of Windsor reports that none of the property is designated wetlands" (Cl. Ex. 1, p 22), while the State's appraiser made no mention of a wetland area in his appraisal. It is unclear what Mr. Osterhout meant when he stated that the drainage ditch or drainage swale was not where the driveway was, but "there is one above it". In fact there was a pipe which emerged from beyond the highway's southerly edge at the guide rail break depicted on sheet 2 of Claimant's Exhibit 5. This pipe however, appears to have only extended from the median where a drainage inlet is shown on the appropriation map and also on State's Exhibits I and J. Less than 100 feet to the east of the break in the guide rail, a second culvert ran from the north side of Route 17 and emerged at the southerly side of the highway. Both culvert pipes are clearly illustrated on the appropriation map. (Cl. Ex. 5) Although Claimant and others presumably were able to use this break in the guide rail to gain access to the subject property, it is clear from the proof presented that such was not the intent of the break in the guide rail and, from the topographical maps it is difficult to imagine what sort of access would be possible beyond the circuitous and unconventional. Notably, there are no photographs in evidence which show the driveway described by Mr. Osterhout, which supposedly ran southerly from this particular break in the guide rail and, indeed, it would be hard to visualize such a driveway in view of the abundant vegetation and trees located immediately to the south of the break, which would appear to be directly in the path of such a driveway. (see, St. Exs. I and J; St. Ex. B, Alternate Plan A and Cl. Ex. 5)

A guide rail in the median divided the eastbound from the westbound lanes of Route 17. It extended along the entire length of the subject's frontage. There was a break in that guide rail at a crossover, which was directly opposite the driveway leading to the subject residence at the northwest corner of the subject lot. There was a second break in the median guide rail at a crossover which was directly across from a driveway leading to a residential property on the north side of Route 17, which median break was well to the east of the break in the guide rail on Claimant's frontage where the culvert pipe entered upon Claimant's property. (
cf., St. Ex. J and St. Ex. B, Alternate Plan A Map) As a result, westbound vehicles on Route 17 could not use this particular crossover in the median to gain access to the subject property via this break in the guide rail on the subject frontage. Mr. Osterhout thought that there were two openings in the median guide rail, providing median crossover. He was asked if these openings lined up with the breaks in the guide rail along the subject frontage and he responded, "Pretty much". In point of fact, the break in the guide rail at the northwest corner of the subject property did line up with a driveway leading on to the subject property at the extreme west end thereof. (see, Cl. Ex. 8; St. Ex. A, p 16 middle photograph and page 17 middle photograph)[3] "Pretty much", however, does not come even close to fairly assessing the extent of the offset between the second break in the median guide rail to the east and the break in the subject guide rail to the west, where the culvert pipe entered upon the subject property.

Although, as noted, Mr. Osterhout thought there were two breaks in the center median guide rail opposite the subject property, it appears to the Court that there may have been three, the third one located approximately 125 feet east of the westernmost break in the center median guide rail. (See, St. Ex. B, Alternate Plan A) There are no photographs of this third break in evidence, but it appears on the official appropriation map (Cl. Ex. 5) and the State's engineering expert's map of the subject property (St. Ex. B, Alternate Plan A) This third break in the median guide rail appears to the Court to have been placed to service a driveway leading to a residential property on the north side of Route 17, centrally located across from the subject property. It appears that Mr. Osterhout and his wife, at least at one time, owned this property, which was serviced by the third median break. (
see, Claim herein, filed February 16, 1999 and Map 192 R-1, affixed thereto)[4] The width of this break, as scaled on the appropriation map, appears to have been approximately 33 feet.

As of the date of the appropriation, June 2, 1998, the entire subject property was zoned commercial.


The Claimant's appraiser utilized the market approach in arriving at his estimate of the before value of the property. The State's appraiser used the market approach and the cost approach, although he gave "little, if any" weight to the cost approach. As a result of his analysis, the Claimant's appraiser concluded that the subject property had a before value of $1,000,000, all value inherent in the land, since he concluded that the subject residence added "negligible value". (St. Ex. 1, p 22) This was based on a per acre value of $62,000 an acre.[5]
As a result of his analysis, the State's appraiser concluded that the subject property, including the residence, had a before value of $71,000.

How is this possible?


Route 17 is a major thoroughfare across the southern tier of the State of New York, including its passage through the Town of Windsor, where the subject property is situated. This conclusion flows from the fact that it is a four lane divided highway and that the purpose of the subject appropriation, among others, is to enable the State to upgrade the highway to interstate highway status. Thus, it is being converted to an entirely limited access highway. (St. Ex. A, p 11) The subject property is located approximately 7.5 miles to the east of the City of Binghamton and approximately that same distance to the west of the Village of Windsor, both of which are serviced by Route 17. (Cl. Ex. 1, p 21) The daily traffic count on Route 17 in 1995, prior to the subject appropriation, was 14,100 vehicles (Cl. Ex. 1, p 21) and counsel stipulated at trial that the traffic count in 1998 on Route 17, in the area of the subject property was 12,900 vehicles per day. Thus, in 1995, on average, 7,050 vehicles traveled eastbound and 7,050 vehicles traveled westbound along the Claimant's frontage and, in 1998 6,450 traveled eastbound and 6,450 traveled westbound. It is reasonable to infer from these relatively high traffic counts that Route 17 was a busy, well traveled highway not only on the date of the appropriation, but during the years prior thereto. Yet, the Court finds this traffic on Route 17 had generated very little commercial development along the highway in the Town of Windsor. On this subject, Claimant's appraiser recorded, "surrounding improvements consists [
sic] of farms, residences and small commercial properties....Uses south of the subject and along Rockwell Road are residential". (Cl. Ex. 1, p 21)[6] Asked about the "immediate neighborhood" of the subject property at the trial, Claimant's appraiser responded that "the subject neighborhood I would say comprises of mostly vacant land, but there are also a scattering of one family houses and a few commercial uses along some of the frontage of Route 17". The State's appraiser opined that the "present land use in the subjects [sic] neighborhood will continue to remain the same, predominately [sic] residential with limited commercial along the highway areas". (St. Ex. A, p 12)

The Claimant's appraiser reached his opinion with regard to before value based on a commercial highest and best use, which contemplated the demolition of the subject's residence. (Cl. Ex. 1, p 31) The State's appraiser concluded that, "Based on the Legal, Physical, and Economic factors, the subject property [
sic] Highest and Best Use is for its present residential and/or recreational use". (St. Ex. A, p 36)

After carefully considering the proof, the Court finds that the highest and best use of the subject property as of the date of the appropriation was for residential and recreational use. There are a number of reasons which inexorably lead to this finding.


They follow.


With regard to the commercial zoning, the State's appraiser recorded that the latest Town of Windsor commercial re-zoning amendments were taking place "up to 3/24/98" (St. Ex. A, p 5) and
It became apparent during meetings with the T/O Windsor Clerk, Zoning Officer and the Assessor, and council person in charge of the zoning changes, that the zoning changes were made in anticipation of the Route 17 re-construction project, and that the officials were not aware of the non-access nature of the new highway. Although the zoning was effectively changed at the date of the vesting, it is in an residential/recreational area, has no public utilities available other than electric, and has very severe frontage terrain along the Rt 17 median divided highway.

(St. Ex. A, p 23)

Although the Court is not privy to exactly what is going on in the minds of the Town of Windsor officials in re-zoning the subject property, it is difficult to imagine a rational reason other than the one supplied by the State's appraiser.


At the trial, Claimant's counsel asked the Court to take judicial notice of two decisions handed down by this Court involving appropriations by the State of property fronting on Route 17 in the Town of Windsor. In one claim, the Court found that the highest and best use of the property was, in part, commercial and in the other that the highest and best use was entirely commercial. Both were discussed at some length during the course of the trial. The first property involved a 10.5 acre parcel which adjoined the subject property on the east and which was improved with four buildings utilized in connection with a retail lumber business. The same creek that crossed the southeast corner of the subject property also crossed this adjoining property dividing the property approximately 2/3 to the north of the creek and 1/3 to the south. The Court concluded that the acreage north of the creek had a highest and best use as commercial. That is, where the lumber business buildings were located. (s
ee, Miller v State of New York, Claim No. 98211, Decision, Hanifin, J., filed July 31, 2000) The Court notes that, other than in the area where the buildings were located on the Miller property, the Miller acreage north of the creek was similar topographically to the subject property. The distinguishing feature between Miller and the subject property, and the one that dictated a partial commercial highest and best use for Miller and not one for the Claimant, was access. The Miller property enjoyed about the same amount of frontage along the south side of Route 17 as the subject, but it was also located at the intersection of Rockwell Road and Route 17. Thus, it enjoyed some 790 feet of unrestricted frontage along the west side of Rockwell Road. In addition, although there was a guide rail which traversed the Route 17 frontage of the Miller property, it did not interdict the entire frontage since, although it began at the west end of the frontage, it did not continue all the way to Rockwell Road. Further, there were two access points onto the Miller property from Route 17 which existed on the date of the appropriation that brought the Miller matter to Court. Needless to say, the break in the center median at the point where Rockwell Road adjoined the south side of Route 17 was far wider than the previously described breaks in center median along the subject's frontage. As a result, travelers westbound on Route 17 could turn southerly into Rockwell Road and enter upon the Miller property with ease. The other decision, with regard to which the Court was requested to take judicial notice, involved a lot improved with a grocery store/delicatessen located on the south side of Route 17 some distance to the west of the subject property. The Court valued this property as a commercial site. (see, Falank v State of New York, Claim No. 98692, Decision, Hanifin, J., filed May 23, 2000) Access to the Falank property differed dramatically from the subject, as well. Falank was also located at the corner of an intersection of a local road with Route 17. The local road was Frost Road and it adjoined the Falank property on the west. Frost Road was not a "T" intersection, but rather crossed Route 17 and continued to the north. The Falank lot enjoyed 240 front feet on the south side of Route 17 and some 108 feet of frontage on Frost Road, none of which was encumbered by a guide rail. Obviously, like Miller, since Falank was located at an intersection, westbound traffic on Route 17 could easily gain access. Access to the subject property by westbound travelers on Route 17 was far more problematic, particularly if those travelers intended to enter upon a 17.4578 acre parcel improved with commercial enterprise(s) on the south side of Route 17. The center median dividing the eastbound and westbound lanes of Route 17 along the subject frontage was narrow. Indeed, it was not much wider than the width of the guide rail erected thereon. (see, St. Exs. I and J) In the Court's view, there would not have been enough room, for example, for a westbound car to stop in the center median breaks opposite the subject property without the vehicle impinging either on the westbound passing lane or the eastbound passing lane. (see, St. Exs. I and J) In short, access to the subject property by westbound traffic on Route 17, for virtually any conceivable commercial use, was impractical, as a matter of law.

Quite apart from the existing access problem presented by the median guide rail, there was no proof presented to the Court that there was any likelihood that legal access to the subject property, along its Route 17 frontage, could have been improved prior to or on the date of the appropriation. It is reasonable to infer that the guide rail that traversed the Claimant's frontage was erected pursuant to the State's police power and, in all likelihood, it was there because of the steepness of the drop off from the eastbound travel lanes downward, but within the existing right of way, to the Claimant's property. It seems to the Court that the only way that access to the subject property from Route 17 could have been improved or expanded would have been by obtaining a permit(s) to perform work within the State right-of-way. That is, to obtain permits to widen the existing openings in the guide rail traversing Claimant's frontage or to create new openings. This subject was not discussed in any definitive way at the trial, although State's counsel did ask the Court to take judicial notice of the State Highway Law § 52, which the Court has done. Section 52 provides in pertinent part:

Except in connection with the construction, reconstruction, maintenance or improvement of a state highway, no person, firm, corporation, municipality, or state department or agency shall construct or improve, within the state highway right of way an entrance or connection to such highway...except in accordance with the terms and conditions of a work permit issued by the commissioner of transportation...

Just as it is a property owner's burden to demonstrate a reasonable probability of re-zoning, when the property owner urges a higher highest and best use other than the actual use of a property at the time of an appropriation (cf., Masten v State of New York, 11 AD2d 370, affd., 9 NY2d 796; Matter of Town of Islip (Hamlet of Sayville), 49 NY2d 354; Harwood v State of New York, 112 AD2d 741; Dittmer v State of New York, 187 AD2d 693), so too, it was Claimant's burden here to demonstrate a reasonable probability that a permit(s) sought pursuant to § 52 of the Highway Law would have been forthcoming. (cf., Fodera Enterprises v State of New York, _____AD2d ____; 714 NYS 2d 113) There was no such proof.
...It is well settled that in those situations where each party's appraiser finds a different highest and best use for a particular parcel, there is no range of values as to that component and the trial court must accept the value found by the appraiser whose highest and best use is accepted or else adequately explain its failure to do so (1250 Central Park Ave. v State of New York, 58 AD2d 688; Darrow v State of New York, 44 AD2d 625; Elmore Realty v State of New York, 44 AD2d 621; Nature Conservancy v State of New York, 41 AD2d 782).

(Vic's Automotive Services, Inc. v State of New York, 91 AD2d 1115)

After having carefully reviewed the State's appraiser's analysis of before value based on a highest and best use of residential/recreational, the Court finds no reason to deviate from his estimate of the before value of the subject property. The Court therefore finds that the subject property had a before value of $71,000 allocated as follows: land $21,000; building improvements and land improvements $50,000.


Parcel 90 as shown on appropriation map 57 is .8174 hectare or 2.02 acre (R) parcel, rectangular in shape, stretching across the entire Route 17 frontage of the subject property. This parcel, taken in fee without access, was approximately 90 feet deep at its westerly end and 126 feet at its easterly end. Since the only access to the subject property prior to the appropriation was to and from Route 17, as a result of the appropriation of Parcel 90, the subject remainder is landlocked. Both appraisers concluded that the after highest and best use of the remainder was for sale to an adjoining property owner. The Claimant's appraiser thought that this use "would be for residential or agricultural purposes". (Cl. Ex. 1, p 60) The State's appraiser thought that this use would be "for mainly recreational use with a remote potential for residential use". (St. Ex. A, p 55)


The southerly line of Parcel 90 passed through the subject residence. (
see, Cl. Ex. 5) Thus, as a result, the residence and the land improvements were effectively appropriated.

Both appraisers valued the subject remainder by the market approach. Obviously, finding sales involving the transfer of landlocked parcels to adjoining property owners, particularly parcels similar to the subject remainder, would be a challenging task. Neither appraiser was able to find such a similar sale(s).


In arriving at his view that the subject remainder had a per acre after value of $155, Claimant's appraiser analyzed and adjusted what he viewed as four after comparable sales. Each of these sales, in his view, had "adequate road frontage". (Cl. Ex. 1, p 67) To reflect the fact that the subject remainder had no accessible road frontage, the Claimant's appraiser made a minus 75% adjustment to each sale for "Access". (Cl. Ex. 1, p 66)[7]


In arriving at his estimate of after value in the amount of $5,000, the State's appraiser analyzed and adjusted three sales. One, his RL-8 sale, (St. Ex. A, p 74) fronted on Route 17 but was, in his view, about 20 feet above the Route 17 road grade. This sale had access across a right-of-way to a Dunbar Road, which apparently was 15 feet above grade of the right-of-way. His second sale, RL-9, was accessed by "a dirt ROW trail that would require a 4 wheel drive vehicle for access most of the summer and would be impassable in the winter." (St. Ex. A, p 75) His third sale, RL-10, had "access by a privately owned narrow dirt lane that is owned and maintained by grantee and adjoining owner in common". (St. Ex. A, p 76) This transfer was a sale to an adjacent owner, but the adjacent owner was also apparently one of the co-owners of the "narrow dirt lane". The unadjusted per acre sales price of these transfers was $441, $273, and $216, respectively. After weighing all three sales the State's appraiser opted for a per acre value of the subject remainder of approximately $325 per acre, (St. Ex. A, p 60) after having made no adjustments to any of the sales to reflect the fact that all had access, albeit not the most desirable, whereas the subject remainder had none. Thus, the Court is left with the Claimant's appraiser's entirely subjective view that, when comparing a parcel of land which has access to a parcel of land which does not have access, a 75% minus adjustment is appropriate for the access factor and the State's appraiser's peculiar thought that when comparing a parcel with access, albeit not the best, to the subject's landlocked parcel, no adjustment at all is needed. In the Court's view, had the State's appraiser adjusted his comparable sale unit prices downward to appropriately reflect the access versus no access factor, he would have arrived at an indicated per acre value in the neighborhood of $155 per acre. The Court finds that the subject remainder had a value of $155 an acre or $2,393 (R). Therefore, Claimant's sustained damages as a result of the appropriation of the fee without access in the amount of $68,607. Of this sum, $52,430 represents direct damages (Land $2,430 [R]; improvements $50,000) and $16,177 [R] represents consequential damage to the remaining land.


As noted (
supra, p 14) the south line of the fee without access taking ran directly through the subject's residence. The State also appropriated a temporary easement "FOR REMOVING OR RAZING BUILDINGS AND IMPROVEMENTS" (Cl. Ex. 6, Sheet 2), which involved the temporary occupancy of .088 (R) acre. (see, Map 58, Parcel 91; Cl. Ex. 6) Based on his view of the per acre after value of the subject, the Claimant's appraiser concluded that the per diem rental of the temporary easement was $0.01 (Cl. Ex. 1, p 70) The State's comparable estimate was $0.25, per month. (St. Ex. A, p 64) At the time of the trial the temporary occupancy had not been terminated. Subsequent to the trial, the Court received a letter from Claimant's counsel, with a copy to State's counsel, informing the Court that the easement was formally terminated on August 15, 2000. The Court finds that the fair rental of the temporary easement was $8.00. Thus, the Claimant is awarded the sum of $68,615, with interest thereon from June 2, 1998 (the date of taking) to December 2, 1998 (six months after the date of taking) and from February 16, 1999 (the date of filing) and thereafter pursuant to CPLR §§ 5001, 5002 and 5003 and Court of Claims Act § 19 (1), subject to Court of Claims Act § 19 (4) and EDPL § 514.

The Court has viewed the property.


The award to Claimant herein is exclusive of the claims, if any, of persons other than owner of the appropriated property, their tenants, mortgagees or lienors having any right or interest in any stream, lake, drainage, irrigation ditch or channel, street, road, highway or public or private right-of-way or the bed thereof within the limits of the appropriated property or contiguous thereto; and is exclusive also of claims, if any, for the value of or damage to easements or appurtenant facilities for the construction, operation or maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer or railroad lines.


ENTER JUDGMENT.


Noember 30, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
The Court has scaled these distances and estimated these elevations from State's Exhibit B, Alternate Plan A, a topographical map of the subject lot prepared by Hawk Engineering, P.C. at the request of the State, and appended to the exhibit.
[2]
Unless otherwise indicated, all quotations are from the Court's trial notes or the trial electronic recording cassettes. All quotations from these sources are verbatim.
[3]
Claimant's Exhibit 8, a photograph of this break in the guide rail and the driveway was taken from the State's expert's appraisal. In other words, Claimant's Exhibit 8 and State's Exhibit A, page 16 middle photograph are exact duplications.
[4]
At the commencement of the trial, Claimant discontinued, without prejudice, a claim for damages resulting from a partial appropriation affecting the property described on this map.
[5]
Claimant's appraiser originally estimated that the subject property encompassed 16.09 acres and appraised the property with that estimate in mind. His $1,000,000 before value estimate was based on that acreage. Since the actual stipulated before acreage of the subject property was 17.4578 acres, he testified at the trial that the before value was "about" $1,082,000.
[6]
Rockwell Road formed a T intersection with the south side of Route 17 and ran southerly therefrom a short distance to the east of the subject property. (see, Cl. Ex. 1, p 8)
[7]
The Claimant's appraiser arrived at a total after value of $2,000 (R) but this was based on his belief that the subject remainder encompassed 14.07 acres rather than the stipulated remainder of 15.4378 acres. At $155 an acre, therefore, the subject remainder would have an indicated value of $2,393 (R) based on $155 per acre.