The claimant is the owner of a 22.06 acre parcel of land adjoining the westerly
right-of-way of the Taconic State Parkway (hereinafter Taconic) in the Town of
East Fishkill (see Exhibit 11). Claimant seeks damages as a result of an April
15, 1999 appropriation by the New York State Department of Transportation
pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law,
not of lands, but of any right of "access" that the property has to the
While somewhat complex, the essential facts of the matter are undisputed. On
April 15, 1999 a taking map and description was filed with the Dutchess County
Clerk under Map No. 1025 and Parcel No. 1034. The appropriation filing
described by metes and bounds depicted the same 9.534 acre portion of the
right-of-way of the Taconic which was described and depicted in Map No. 83, an
appropriation map filed in 1936 by the Taconic State Park Commission.
The 1999 filing indicated that its purpose was not to secure any additional
lands but was "to prohibit access" and that:
"The purpose of this map is to fully prohibit the right of access to and from
abutting property where same had heretofore been allowed to adjacent owners
under Map No. 83 for the Taconic State Park Commission, a certified copy of
which was filed in the Office of the Clerk of Dutchess County on March 28, 1936"
(see Map and Description attached to Amended Claim).
On March 26, 1936, under its Map No. 83, the Taconic State Park Commission
appropriated the 9.534 acre parcel in fee simple absolute from the claimant's
remote predecessor-in-interest, Cornelius W. Garrison. The taking was a roughly
rectangular area, 350 feet wide by 1,200 feet long from south to north through
the Garrison property. The 1936 appropriation was for the purpose of creating
the right-of-way, laying out and constructing the Taconic.
The lands appropriated in 1936 were part of a 120 +/- acre former dairy farm
(see Exhibit 10) but as of March 26, 1936, the premises had not been "...used
for dairy or farming purposes...for a period of about eight years [the period of
Garrison's ownership] [and] the buildings on the premises were not in good
condition and all of them were in need of repair" (Exhibit 10, Paragraphs 11 and
The 1936 parkway right-of-way appropriation effectively divided the property
into two segments. One 22 +/- acre parcel lay to the east of the parkway
corridor. The remaining larger segment, 90 +/- acres, lay to the west of the
A claim was brought as a result of the 1936 appropriation and resolved in this
In subsequent years, the Taconic was constructed on the lands appropriated as a
limited access, restricted-use roadway with public access only at interchanges
or intersections with public roadways.
Claimant's property is a portion of Garrison's 90 +/- acre tract on the west
side of the parkway right-of-way. It is located a fairly uniform distance of
100 feet from the easterly edge of the southbound travel lanes of the
A dirt and gravel lane
, at least 100 feet long and approximately 12-16 feet wide, leads from the
southbound travel lanes of the Taconic to the westerly edge of the right-of-way
through the landscaped buffer area. In the years since the construction of the
Taconic in 1939, it intermittently has served as an access driveway to the
former Garrison, now Orchard Grove, property from the
The driveway begins at a point directly opposite Bogardus Lane, an improved,
two-lane, paved roadway of the Town of East Fishkill, which intersects the
Taconic at grade from the east. Prior to 1999, a paved median roadway also
extended east to west from the northbound travel lanes to the southbound travel
lanes of the Taconic permitting unrestricted crossing and turning from Bogardus
Lane. It is not known if Bogardus Lane was a public road of the Town of East
Fishkill in 1936 when the initial appropriation was made or whether any part of
Bogardus Lane, even assuming it was a Town road, reached what is now the
The testimony of the current and former Superintendents of Highway for the Town
of East Fishkill, Dennis Miller and Kenneth
, was offered at trial on the issue of whether Bogardus Lane west of the Taconic
was a Town road. The testimony established that Bogardus Lane West was never
paved and widened like the segment of Bogardus Lane on the east, but that the
Town highway workers have plowed snow from Bogardus Lane West from time to time
to allow the resident of what is now claimant's property to gain access to the
Taconic. Without reference to any maps or official records of the Town from the
time of the 1936 appropriation, the Superintendents referred to the driveway as
a westerly spur or cul de sac of Bogardus Lane. Neither could say how or when
Bogardus Lane became a Town road.
In 1994, Orchard Grove of Dutchess, Inc., as contract vendee, applied to the
New York State Department of Transportation (hereinafter DOT) for a highway
access permit to allow the enlargement and improvement of the dirt and gravel
driveway. Claimant sought to widen the driveway to 50 feet, install drainage
facilities and pave its length to provide an access roadway to the 22 acre
property from the travel lanes of the Taconic. Improvement of the access was
necessary to the success of an application the claimant had made to the Planning
Board of the Town of East Fishkill to allow subdivision of the parcel into an
18-lot residential development.
DOT, which assumed jurisdiction over the ownership, operation and management of
the Taconic as successor to the Taconic State Parkway Commission, denied the
application. In a letter dated June 20, 1995 from J. W. Wickeri, Permit
Engineer, the claimant's principal was told that:
"...It is the Department's position that the additional turning movements and
cross traffic generated by the development of this 22 +/- acres will jeopardize
the safe operation of this intersection; we therefore, have concluded that we
grant approval to improve the westerly leg of Bogardus Lane as
proposed, but will proceed to acquire the property or the rights of access to
the Parkway via Bogardus Lane" (see Exhibit 5).
Despite denial of the needed driveway/access permit, the seeming frustration of
the planned subdivision, and DOT's advice that it would acquire the property
rather than permit the access sought, claimant purchased the property on June 5,
1997. Claimant's appraiser, Donald M. McGrath, Jr., offered evidence of the
value of the claimant's property as a potential subdivision with access to the
Taconic and the value of the lands without such access. A total of $365,000 in
damages is claimed (see Exhibit 11).
Lee Ann McCollum testified at trial on behalf of claimant. She testified that
she was employed by Crystal Clear Abstract Corp. and her experience included
conducting title searches for over 25 years including over 17 years of
experience as a title examiner.
Ms. McCollum testified that her company conducted a thorough search of the land
title records in the Office of the Dutchess County Clerk as they related to the
subject and her review did not uncover any restrictions on the subject property
having access to the west portion of Bogardus Lane. She referred to the State's
1936 taking from claimant's remote predecessor in interest, Mr. Garrison, and
stated that nowhere in the previously filed taking papers was there language
that the taking was without access. However, the witness was unable to point to
any recorded instrument in the chain of title which created such access. In
fact, the only reference to such access was quitclaim language in a deed
executed in 1969 (Exhibit 13) which purported to convey such rights as the then
grantor had, "if any". At the end of her testimony, the witness simply stated
that the access existed by adverse possession. As discussed,
, this position was erroneous. It is also noteworthy that while the
title insurance company issued this opinion it did not affirmatively insure this
access for the property. Whether claimant ever requested such affirmative
insurance is not clear to the Court.
With the salient facts of the matter firmly established, the Court's analysis
turns to the threshold issue of whether claimant had any vested right of
access/egress to the Taconic that was, in fact, taken by the State in
Like virtually all other property rights, rights of access/egress are created
by express terms of a recorded instrument, necessity or prescription. In the
instant matter, the documentary evidence submitted to the Court, as well as the
testimony of claimant's title examiner, demonstrates conclusively that no
express grant of access/egress was ever created to run with the claimant's
The 1936 appropriation by the State bisected what was then one large parcel.
The parkway which was eventually constructed through the parcel did not provide
for free and open access to abutting landowners. In fact, as the State points
out, the source of legislative authority for the 1936 appropriation was not the
Highway Law but rather the predecessor statute to what is now known as the
Parks, Recreation and Historic Conservation Law. Such appropriations are deemed
to be appropriations of parkland in their entirety regardless of whether a
parkway is subsidiarily built within that land. As a result, the 1936
appropriation did not include the more typical rights of access to a highway
which are accorded to abutting landowners (
In re County of Westchester [Hutchinson River Parkway]
, 246 NY 314;
Perlmutter v Greene
, 259 NY 327). Based upon the documentary evidence of
the 1936 taking, it is clear to the Court that no express or implied
rights-of-access were reserved to Garrison as a result of the 1936
As a result, the Court finds that there is no instrument in the chain of title
which would grant an express right-of-access/egress to the claimant as of the
date of the 1999 "appropriation".
Having determined that there is no express grant of access/egress in claimant's
chain of title, the Court next examines easement by necessity. Simply put,
there is no evidence in this record to require (or support) this Court finding
an easement by necessity accrued to claimant's property. On this point, the
only testimony in the record amounts to a conclusory allegation that the parcel
is landlocked. There is no testimony establishing the elements of necessity and
no evidence whatsoever that the State should be in any different position from
the other landowners surrounding claimant's parcel in this regard. Thus, on
this record, I cannot determine that an easement of necessity existed as a
matter of law in 1999.
Finally, rights-of-access/egress can be created by prescription. However
prescriptive rights, sounding in adverse possession, are not available in the
case at bar since adverse possession is never available against the State in its
governmental capacity (
People v Systems Properties, Inc.
, 2 NY2d 330; Peasley v State of New
, 102 Misc 2d 982; 96 NY Jur 2d, State of New York § 153; see,
City of New York v Sarnelli Bros., Inc.
, 280 AD2d 573; see also,
Casini v Sea Gate Assn.
, 262 AD2d 593).
In summary, this Court now determines that the 1936 appropriation of the lands
of Garrison did not leave any residual rights-of-access to the Taconic from the
property of Garrison which was bisected by the appropriation. As a result, the
quitclaim language contained in the 1969 deed from Taub to Freedmann (Exhibit
13) could not create such right and the conclusion of claimant's title company
to the contrary was in error. Acquiescence by the State to the use of the
driveway by claimant's predecessors-in-interest afforded permissive and
practical access but not a permanent legal right of access (see,
Pollak v State of New York
, 41 NY2d 909, 910).
Despite my holding regarding the effect of the 1936 appropriation, additional
analysis is implicated by virtue of the testimony of Dennis Miller and Kenneth
McKeown. Briefly stated, Mr. Miller testified that the Town of East Fishkill
maintained, repaired and plowed Bogardus Lane for many years. This calls into
question whether any vested rights were created by statute subsequent to 1936
and prior to the 1999 "taking".
Mr. Miller testified that the Town lists Bogardus Lane on its official
Inventory of Town Roads (Exhibit 16), is reimbursed by the State of New York for
plowing Bogardus Lane based upon this inventory and that the 16-foot wide
driveway located to the west of the Taconic is included in this delineation of
. While there is no record of the Town Board taking any action to declare this
area a public roadway or dedicating land to this purpose, claimant relied upon
these actions of the Town subsequent to 1936.
Mr. Miller further testified that prior to 1986 the Town had "paved" the
16-foot wide right-of-way with oil and stone. Nonetheless, he conceded that
Bogardus Lane east of the Taconic consists of an imperviously surfaced, 30-foot
roadway while Bogardus Lane West is essentially a 16-foot wide driveway. Mr.
Miller's testimony raises an issue as to whether this driveway became a Town
road by virtue of public use and maintenance under Highway Law § 189.
Although claimant never cited to the Highway Law, it is clear that the
testimony of Mr. Miller was introduced for the purpose of obtaining a
declaration that Bogardus Lane West became a public highway by virtue of the
Town maintenance of the road. The Court does not agree.
Pursuant to Highway Law § 189, lands which are used by the public as a
highway for a period of ten years or more shall become a highway. Case law has
established that public use, by itself, is not enough. There must also be
evidence of maintenance and repair by the local public authorities (see,
Salvador v New York State Dept. of Transp.
, 234 AD2d 741; Hillelson v
, 105 AD2d 484).
In the first instance, Highway Law § 189 has never been applied against
the lands of the State of New York. The Court can find no case in which a
public highway was declared as a result of either public use or town maintenance
where the owner of the fee in question was the State. This result would appear
required by the strong public policy prohibiting the use of adverse possession
and prescriptive rights against the State (see,
People v Systems Properties, Inc.
, 2 NY2d 330, supra
; Peasley v
State of New York
, 102 Misc 2d 982, supra
; 96 NY Jur 2d, State of New
York § 153, supra
; see, City of New York v Sarnelli Bros.,
, 280 AD2d 573, supra
; see also, Casini v Sea Gate Assn.
262 AD2d 593, supra
Further, Highway Law § 189 requires "public" use. However, all of the
evidence and testimony before this Court indicates that the most intense
historical use of this driveway was for one owner to access his single-family
home. This essentially private use of a driveway does not rise to the level of
"public" use comprehended by Highway Law § 189. Therefore, quite apart
from the proscription of adverse possession against the State, the Court holds
that the access in question does not qualify for a declaration of public roadway
under Highway Law § 189.
Despite the Court's holding that the claimant possesses no vested right,
whether express, implied, prescriptive or statutory, there remain several
questions regarding the State's own actions over the years. Specifically,
evidence at trial indicated that the State had acceded to the use of the
driveway from claimant's property to the Taconic. During this time, the State
installed, or permitted, a traffic control sign and a directional sign. In
addition, the question might reasonably be asked what the DOT thought it was
doing in 1999 when it issued the supplementary takings map (Exhibit 6) to "fully
prohibit the right of access to and from abutting property where same had
heretofore been allowed to adjacent owners under Map No. 83..."
Claimant reasonably points out, and at first blush it does appear, that the
State itself believed that there was some residual vested right-of-access held
by claimant and this right required appropriation if access to the Taconic was
to be terminated. However, based upon this record and the analysis set forth at
length above, the Court can find no basis in law requiring the State to allow
any access, much less an expanded access, in perpetuity. The State's sufferance
of the use of its land was not required by any easement, statute or contract
before this Court. As a result, the Court finds that to the extent the State
permitted access over the driveway from claimant's property to the Taconic, such
permission constituted, at most, a license and, at the least, a gratuitous
benefit conferred upon the property owner. Either could be terminated at any
time. Such gratuitous benefits do not create any compensable vested right in
the claimant under either the United States or New York State Constitutions
In re Low v City of New York, et al.
, 233 NY 334 ).
The principal issue in
, is directly on point in the case at bar. In that
matter, abutting landowners in New York City had constructed underground vaults
which encroached upon City streets. When the City directed their removal in
preparation for construction of the subway system, the owners claimed
compensation for the "taking" and the Court held:
"The permits granted for this purpose were revokable...and did not constitute,
in our judgement, a right, privilege, franchise or easement...for which
compensation was to be made when such were taken or destroyed"
(In re Low v City of New York, et al.
, 233 NY 334 , supra
, was decided in 1922, the seminal principle of the case
remains good law today and the doctrine that gratuitous governmental benefits do
not confer vested property rights remains vibrant in many areas of modern law
(see, Bavaro v Parente
, 96 AD2d 519; Gluck v City of Syracuse
AD2d 873; Town of Esopus v State of New York
, 166 Misc 2d
As a result of this analysis, the Court finds that the actions of State
employees in issuing the 1999 takings map (Exhibit 6) were merely surplus
actions not required by law. These erroneous actions by governmental employees
cannot bind the State and cannot create rights in a private individual where no
such rights otherwise exist. In effect, neither legal nor equitable (estoppel)
remedies are available against a governmental unit to ratify an administrative
Matter of Parkview Assocs. v City of New York
, 71 NY2d 274; Morley v
, 66 NY2d 665).
A final issue requiring resolution in this matter is the motion by the State
requesting that this Court strike claimant's appraisal. The motion was made at
the close of the claimant's case and again upon submission of the matter. I
reserved decision on both motions and they are decided jointly at this
The basis of the State's motion is that the appraisal submitted by claimant
values the property solely as a fully developed 18-lot subdivision. The State
asserts that the appraisal is legally in error in utilizing this developed
subdivision as the appropriate "highest and best use" for valuation purposes
since it assumes development of a project which could not be built.
The Courts of this State, including the Court of Claims, have long held that a
condemnee is entitled to the highest and best available use of the property
irrespective of whether it is so used (
Matter of County of Suffolk [Firester]
, 37 NY2d 649; Keator v State of
, 23 NY2d 337; Breitenstein v State of New York
, 245 AD2d
837). However, this valuation by "highest and best use" is not unfettered and
requires a determination that a development which is theoretically possible
based upon zoning can actually be accomplished in view of all regulations which
affect such development. The Courts have held that a speculative or
hypothetical "highest and best use" cannot serve as the basis for an award and
there must be a reasonable probability that an asserted highest and best use
would materialize in the reasonably near future (Masten v State of New
, 11 AD2d 370 affd
9 NY2d 796; West Seneca Cent. School Dist.
v State of New York
, 60 AD2d 760). Further, an indication that there is
"some possibility" is insufficient and it must be established that the asserted
highest and best use could or would have been made of the subject property in
the near future (Matter of City of New York [Shorefront High
, 25 NY2d 146, 149).
Based upon all of the documentary evidence in the record and the testimony of
every witness on this issue, the following facts are clear: (1) to the extent a
road existed west of the Taconic at Bogardus Lane, it never exceeded a 12-16
foot right-of-way; (2) to the extent such road or access easement existed, it
was utilized by one individual to serve one single-family residence; (3) the
Town of East Fishkill would not approve an 18-lot subdivision where the only
access was a 16-foot wide right-of-way; (4) the Town of East Fishkill
requirements for a new subdivision approval include a 50-foot right-of-way as a
threshold condition; (5) the DOT had no intention of approving an expansion
and/or an improvement of that right-of-way to 50 feet with impervious surface
and markings; (6) that claimant was aware of the DOT policy regarding access to
the Taconic prior to its purchase of the property; (7) that claimant's expert
appraiser, Donald McGrath, was also aware of all of these factors.
Based upon all of the above, it is clear to this Court that although an 18-lot
residential subdivision may be the theoretical highest and best use of
claimant's property, there is no reasonable probability that the DOT would have
allowed the improvement and expansion of the right-of-way in a manner which
would gain access for 18 lots to the Taconic. In default of such access, there
is no reasonable probability that the Town of East Fishkill would have approved
such a subdivision anywhere in the near future. Further, based upon the
documentary evidence and testimony of all the witnesses, even if this Court were
to find that a 16-foot wide easement did exist, there would be no legal
mechanism by which claimant could force the DOT to permit the expansion and
overburdening of an easement which previously serviced a single residential
dwelling in a manner required to service an approvable 18-lot
On the basis of all of the above, and giving due consideration to the
reasonable probabilities involved, this Court finds that the valuation contained
in claimant's appraisal, which assumed solely the development of an 18-lot
subdivision, was in error.
Further, had this Court found that claimant possessed a compensable vested
right-of-access, the instant appraisal would be of no value to the Court in
assessing the damages to be awarded. The record is totally devoid of any
evidence of valuation of the property as a single-family residential lot either
before or after the 1999 "taking".
Therefore, in view of my finding that the subdivision was speculative, at best,
and the lack of any alternative information as to the value of a single-family
residential lot, the Court finds that the appraisal is based upon erroneous
assumptions and is hereby stricken.
As the Court finds there was no taking of claimant's property, the claim must
be, and is hereby, dismissed. The Chief Clerk is directed to enter judgment