Dennison v. State, 22 N.Y.2d 409 (1968)

When a portion of a property is taken for public use, the decrease in value to the remaining property due to factors like noise, loss of view, and loss of privacy, all resulting from the public use, can be considered in determining consequential damages.

Summary

The State of New York condemned a portion of the Dennisons’ secluded, quiet property to construct a highway. The Dennisons sought compensation for the partial taking, arguing that the new highway caused a loss of privacy, seclusion, and view, as well as increased noise. The Court of Claims awarded damages, considering these factors, and the Appellate Division affirmed. The Court of Appeals affirmed, holding that while noise alone might not be compensable, it can be considered as one factor in determining the overall decrease in the value of the remaining property after a partial taking. The court emphasized the difficulty of separating the noise element from other valid elements of consequential damage.

Facts

The Dennisons owned a secluded, quiet property in Lake George, New York, characterized by wooded and landscaped land. The property featured tall trees, underground utility services, and a stream, providing privacy and a scenic view. The State condemned a portion of the property to construct a highway, which ran approximately 200 feet from the Dennisons’ residence. The highway embankment stood about 20 feet above the Dennisons’ lawn, obstructing their view, eliminating their privacy, and introducing traffic noise and odors.

Procedural History

The Dennisons filed a claim in the Court of Claims seeking damages for the partial taking of their property. The Court of Claims awarded damages, considering the loss of privacy, seclusion, view, and the increase in noise. The Appellate Division affirmed the Court of Claims decision. The New York Court of Appeals granted leave to appeal.

Issue(s)

Whether, in determining consequential damages for a partial taking of property, the court can consider the impact of noise, loss of privacy, and loss of view resulting from the use of the condemned portion, even if noise alone might not be compensable.

Holding

Yes, because the courts below did not make a separate award for damages due to noise but rather considered it as one factor in determining the decrease in value to the remaining property along with loss of privacy, seclusion and view. The court reasoned that segregating the noise element from other elements would be practically impossible, and any reduction on remand would be arbitrary and speculative.

Court’s Reasoning

The Court of Appeals reasoned that consequential damages, which result from the use of the parcel taken, are entitled to consideration in a partial taking case. While the State argued that damages common to the public, such as highway noise affecting properties adjoining a public highway, should be excluded, the court found that the lower courts did not make a separate award for noise. Instead, the court considered noise as one factor in determining the overall decrease in the property’s value. The court emphasized the practical difficulties of separating the noise element from other conceded elements of damage, such as loss of privacy and view.

The court cited precedent (South Buffalo Ry. Co. v. Kirkover) which has recognized that, where there has been a partial taking of property of the kind present here, the noise element may be considered as one of several factors in determining consequential damages. The court also acknowledged the argument that property owners must endure certain inconveniences for the benefits of modern transportation but concluded that the practical difficulties in separating noise damages outweighed any benefit from applying the State’s theory. Chief Judge Fuld, in his concurrence, noted the specific tranquility of the property as a factor distinguishing the case. The dissent argued that the burden is on the claimant to show consequential damages flowing from the taking and that traffic noise is a universal condition of modern life, not unique to the claimant, and should thus be excluded as an element of damage. The dissent further argued that damages from future traffic noise should be segregated or be excluded if the party cannot prove the specific injury to them not shared by the general public.