Posted by: Patricia Salkin | July 25, 2008

Condemnee’s Failure to Show State’s Temporary Easement for Grading Purposes Affected Marketability of Parcel Bars Sales Prospect as Measure of Damages

The formula for measuring damages when a mere temporary easement encumbers a parcel’s highway frontage was set out by the Court of Appeals in Village of Highland Falls v. State, 44 N.Y.2d 505, 406 N.Y.S.2d 446, in 1978, where the Court stressed that an award made after the easement has expired should be based on the actual facts of the situation “rather than indulging in speculation on the measure of damages claimant could have contemplated at the time of taking.” The award in the present case was made after the easement expired.  Hence the actualities governed, in this case unfortunately for the claimant: they diminish what the claimant sought as compensation.

The claimant had a small parcel fronting on Montauk Highway on Long Island.  It adjoined a similarly sized parcel which fronted the highway at its intersection with a side street running perpendicular.  On that parcel was a structure in which claimant, a dentist, had his office.  The side street accessed this parcel, and the parcel in turn accessed the subject parcel, so that access to the subject parcel was not entirely cut off by the state’s grading work on the highway side. 

A dictum in Highland Falls said that the condemnation court should not ignore “the damage … caused by uncertainty regarding the condemnor’s intentions”, i.e., the threat that doubt in this regard can have on the owner’s business or his plans for sale or development of the parcel.  Claimant seized on that dictum as supporting an award of consequential damages based on the impact of the easement on marketability.  The trouble is that the burden on that score was the claimant’s, and, writes Judge Read in the opinion, he didn’t discharge it. 

The easement was in effect for only 666 days, during which there were only 10 days of actual obstruction of direct access to the highway.  Perhaps more importantly, especially given the finite nature of the taking, is that “the record is devoid of any concrete evidence that claimant actually attempted to sell or develop – or even contemplated selling or developing – the parcel”.  It had been used only for auxiliary parking for the corner parcel. 

Variances would have been required for development, moreover, and the claimant showed no effort to seek them at any time during or before the temporary easement. 

McCurdy v. State, 10 N.Y.3d 234, 855 N.Y.S.2d 421 (3/20/2008).

The opinion can be accessed at:

This case brief appears in the New York State Law Digest No. 583 (July 2008), edited by Prof. David Siegel.


  1. I don’t know if it was the court or you, Patti, but this sounds a bit tendentious. “Mere” temporary easement?
    “Only” 666 days? Why the belittling adjectives? On the courts’ use of the adjective “mere,” see 48 Notre Dame Law Review at 797, n. 169. (the Notre Dame Law Review was then called the Notre Dame Lawyer).

    And whatever happened to the rule that the owner’s plans are irrelevant? How can they be irrelevant when he has them, but relevant whan he doesn’t? This opinion tells us more about that court than about the law. But hey, it’s a New York decision, so what can you expect?

  2. Gideon, there “mere” language comes right out of the opinion, stating the test in NY, “A condemnee is entitled to consequential damages comprising the rental value of the parcel’s unencumbered interior acreage for the easement’s duration only if the condemnor does not meet its burden of proving the interval of
    actual obstruction, or the condemnee establishes that the mere existence of the temporary easement did, in fact, impede sale or development of the property for its highest and best use.”

    “Only” was used by Prof. Siegel whose abstract is cited…perhaps sarcastically…

  3. Thank you for the clarification, Patti. Yor note confirms the wisdom of that Notre Dame Law Review footnote. The sentence you quote only makes this opinion worse.

    I thought that the controlling fact is what the condemnor CAN do under the terms of the taking, not what it chooses to do. But what do I know?

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