An eminent domain case has special standing in New York Jurisprudence. A condemnation taking is a forced sale of property. The claim for damages arising from such a taking is constitutionally protected by both the United States and New York State Constitutions. Because of the “despotic power” of eminent domain and the condemnor’s constitutional obligation to pay the full value of the property, the condemnor’s duty in eminent domain cases is not to win at all costs, but to do justice.
Just as the Government’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done,” Berger v United States, 295 US 78, 88, 55 S.Ct. 629, 633 79 L.Ed. 1314 (1935), so its interest as a taker in eminent domain is to pay “the full and perfect equivalent in money of the property taken,” United States v Miller, 317 US at 373, 63 S.Ct. at 279, 87 L.Ed. 336, neither more nor less – not to use an incident of its sovereign power as a weapon with which to extort a sacrifice of the very rights the Amendment gives.
United States v Certain Prop. Located in Borough of Manhattan, City, Cnty. & State of New York, 306 F.2d 439, 452-53 (2d Cir. 1962).
A former owner of property, now a claimant in a Special Proceeding has done nothing wrong, broken no contract, and committed no tort.
In an ordinary civil case, the party with the burden of proof must prove the case by a fair preponderance of the evidence. But, an eminent domain case is not your ordinary civil case. Indeed, a condemnation matter is not a private litigation.
Generally, the only party in the courtroom with a burden is the Judge. That burden is to assure that the award of the constitutional requirement of just compensation is attained.
As United States Supreme Court Justice Felix Frankfurter wrote, “[s]ince land and buildings are assumed to have some transferable value, when a claimant for just compensation for their taking proves that he was their owner, that proof is ipso facto proof that he is entitled to some compensation.” Kimball Laundry Co. v United States, 338 US 1, 20 (1949).
That is not to say that on some issues, a claimant has no burden of proof. A claimant would be required to prove a reasonable probability of rezoning. The measure of proof is quantified as “reasonable.” Another example would be an inverse condemnation claim.
On the other hand, in a partial taking, the burden of proof is on the condemnor to prove that the remainder has access appropriate to its highest and best use.
Since condemnation is not a private litigation, it is axiomatic that if the lower court finds both parties’ appraisal reports to be defective, a new trial should be ordered. Since condemnation is not a private litigation, but rather the enforcement of a constitutional mandate that just compensation is to be paid, an award must be premised on valid appraisals. See Yaphank Dev. Co. v County of Suffolk, 609 NYS2d 346, 348 (N.Y. App. Div. 1994) (“a condemnation proceeding is not a private litigation. There is a constitutional mandate upon the court to give just and fair compensation for any property taken.”). The term “just compensation” is intended to ensure that the owner receives “the full and perfect equivalent of the property taken” and “[i]t rests on equitable principles and it means substantially that the owner shall be put in as good position pecuniarily as he would have been if his property had not been taken.” Seaboard Air Line Ry. Co. v US, 261 US 299, 304 (1923); City of Buffalo v J.W. Clement Co., Inc., 269 NE2d 895, 905 (1971). Thus, as set forth by New York’s Appellate Division, Second Department:
[If] the appraisals of both parties were defective, there should be a new trial to determine the proper theory of valuation. A condemnation proceeding is not a private litigation. There is a constitutional mandate upon the court to give just and fair compensation for any property taken. This means “just” to the claimant and “just” to the people who are required to pay for it. The rule is abundantly clear that property must be appraised at its highest and best use and paid for accordingly. Where we find it is not…we must remit for retrial upon the proper theory…. Accordingly, we remit this case for the taking of testimony and a new determination of an appropriate theory of valuation upon which the court may derive a value of the parcel….”
Yaphank Dev. Company, supra, 609 NYS2d at 348.
New York’s Eminent Domain Procedure Law provides the exclusive procedure for eminent domain takings. EDPL Sec. 101. Matter of County of Cortland v Miller, 72 AD2d 143 (3d Dept 2010). In our State, a full trial must be before a Supreme Court Justice, or Court of Claims Judge. The matter may not be referred to a referee or special master. Accessorcraft Prods. Corp. v City of New Rochelle, 7 AD3d 703 (2d Dept 2004).
A full trial means exactly that.
Case law emphatically holds that an appraisal is not the substitute for an expert’s direct testimony. The appraisal report is not in itself evidence; its function is to enable adequate and intelligent preparations of the issues for trial and to limit expert testimony at trial. It is not intended as a substitute for evidence. A trial is required to place the appraisal reports and other evidence before the trier of facts to establish the value of the property taken. Matter of Town of Guilderland, 267 AD2d 837 (3d Dept 1999) citing Homer v State of New York, 36 AD2d 333, 335 affd 30 NY2d 722 (1972).
The appraisal in and of itself is not designed to take the place of evidence (Currie v State of New York, 34 AD2d 1027 (3d Dept 1970).) Rather, its function is to supplement the evidence given by the person under whose direction it is prepared. The appraisal should be utilized as a tool which, by adequate examination of its author, helps explain fully to the trial court what the theory of the party introducing the appraisal is so that the trier of the facts is made fully cognizant of what issues are involved in the proceeding. In addition, by delving into the aspects underlying the appraisal, the court will be furnished a record which will permit intelligent appellate review. Homer v State of New York, Supra, 36 AD2d 333 (3d Dept 1971).
A trial court and the Appellate Division as well are bound by the testimony in the record. Matter of City of New York (A&W Realty Corp.), 1 NY2d 428, 433 (1956). This does not mean, however, that an award may never be higher or lower than the experts’ estimates of value; it is only required that there be evidence at hand to support the value actually found by the court. It is the testimony which is important.