[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 293
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 294 It is not claimed on the part of the state that any portion of the claimant's damages is barred by the Statute of Limitations, and hence he was entitled to an award for all the damages he proved. He claims that injustice was done him in the amount awarded, and a careful examination of the case has led us to the conclusion that his complaint is well grounded.
The jurisdiction of this court upon appeals from the Board of Claims is regulated by the act, chapter 507 of the Laws of 1887, which authorizes such appeals "upon questions of law only arising upon the hearing of the claim, or upon the excess *Page 295 or insufficiency of such award or order," and provides that this court "shall hear such appeal, and affirm, reverse or modify such award or order, or dismiss such appeal, or award a new hearing before the Board of Claims, as justice may require."
Under the act, chapter 205 of the Laws of 1883, the commissioners of the Board of Claims were required to view the lands claimed to be damaged, and they could be somewhat influenced by the ocular proof thus obtained. But as we said inPerkins v. State (113 N.Y. 660), "the fact that the commissioners are required to view the premises and to act to some extent upon their own judgment, informed by ocular evidence, does not deprive this court of the power to review their award upon the question of damages. They may adopt some erroneous rule of damages, and their findings may be such, and the case upon all the evidence may be such as to show that they misconceived the facts and erred in their estimate."
The facts of this case are such that the view of the premises by the commissioners could be of no service to them upon the question of damages, as all the damages claimed were caused more than ten years before the Board of Claims was constituted and more than twelve years before the trial of the claim and the view of the land by the commissioners. They could, therefore, get no information as to the nature or amount of the damages by a view of the land, and there was nothing for them to base their award on but the evidence given upon the hearing. That was all given on the part of the claimant and was undisputed. It came from competent witnesses, apparently reliable, and there was nothing to discredit them.
We will take separate notice of each item of damages claimed.
1. The claimant was deprived of the use of the land overflowed from 1846 to 1870, twenty-four years. It is undisputed that at least forty-four acres of the land were constantly overflowed and submerged with water during that time, and that the land was thereby rendered useless; and all the commissioners substantially so found. There is absolutely no evidence *Page 296 that the use of the land during the whole of that period would have been worth, but for the water, less than $6.50 per acre annually. The undisputed evidence justifies a higher estimate. The two commissioners, who united in the award, found that the use of the land annually per acre, during the whole time from 1846 to 1875 was shown to be from $6.50 to $12, and yet they awarded only the sum of $3,000 for all the damages to the land. How this arbitrary amount, in the face of the undisputed evidence and the findings, was reached is not disclosed. The damages were $286 for each year, and for the whole twenty-four years amounted to $6,864. But, after 1870, the land remained substantially useless for two years more before it could be rendered fit for cultivation, and hence $572 should be added to the damages for those years, and thus we have the sum of $7,436 for the damages on account of the loss of the use of the land for twenty-six years from 1846.
2. When the state dug the ditches in 1869 and 1870 to drain the land, it threw the earth from the same onto the sides thereof, and the claimant was obliged, as the proof shows, and as all the commissioners found, to expend in the removal of such earth the sum of $500. We can perceive no reason for the disallowance of this item. To protect itself from continuing liability, the state dug the ditches, and left the earth therefrom in piles. It was necessary to remove this earth to restore the land to its normal condition, and the expense of such removal is an item of claimant's damages, and it should have been allowed to him.
3. The claimant also claimed damages because he was obliged to take compensation from the railroad company for the land taken by it, rendered much smaller than it otherwise would have been because the land was submerged and useless when taken. We find no adequate proof in the case for the allowance of this item.
4. The claimant also claims an allowance for the expenses to which he was subjected in breaking up and reclaiming the land after the ditches had been dug, and the land had thus *Page 297 been drained and rendered dry. We think this is manifestly a proper item of claim. The majority of the commissioners found that the claimant "was required to expend, and did expend, a considerable sum of money to reclaim the land and get it in condition for farming purposes," during the two years after 1870, and yet they allowed him nothing for such expenses.
The damage to the land caused by the water did not cease with the drainage of the land, but continued until the same was restored by expenditures made by the claimant. The state, by its carelessness, had rendered the land useless, and the expense necessary to make it useful again must certainly be a proper item of damage to be allowed to the claimant. The precise amount of this expense was not proved and was not found. The claimant testified that it took a team with a plow and two men to break up from one-quarter to one-half acre of the land per day; and thus to break up the forty-four acres, allowing much for the exaggeration of an interested witness, must have cost at least $200.
The last two items amount to $700, and the claimant claims that that sum was expended more than thirteen years before the award was made, and that, therefore, he should have interest on it for that time. These claims do not grow out of contract. The claimant's causes of action are based upon the negligence of the state, and all his damages were caused by the flooding of his land. They are damages caused by a tort, and were in every sense unliquidated, and we can find no case justifying an allowance of interest in such a case. (White v. Miller, 78 N.Y. 399;McMaster v. State, 108 id. 542; Mansfield v. N.Y.C. H.R.R.R. Co., 114 id. 331.)
Our conclusion, therefore, is that, upon the undisputed evidence in this case, the claimant should have been awarded, at least, the sum of $8,136, and we are asked to modify the award by increasing it to that sum. Have we authority, under the statute, to do this? Our jurisdiction, upon an appeal from the Board of Claims, is confined to questions of law. It was error of law for the board to refuse to award the claimant the damages established by undisputed evidence and actually found *Page 298 by them. Upon the facts as they appear in the record, the claimant was entitled to at least the sum last named. There is no suspicion that the claim is not a just one. It has been prosecuted with great diligence for many years before the legislature, the canal appraisers and this board. It is time that the claimant should receive some measure of justice from this great state, and he should not be compelled to again resume his weary round as a suitor in her tribunals. The statute clothes us with authority to "modify" an award, and that must mean that we may, for any legal error, increase or diminish the award as justice may require.
Our conclusion, therefore, is that the award should be modified by increasing the same to $8,136, and, as thus modified, affirmed, with costs.
All concur, except RUGER, Ch. J., and O'BRIEN, J., not voting.
Judgment accordingly.