(dissenting). The claimants have been awarded consequential and direct damages as a result of the State appropriating part of their land for highway purposes. The consequential damages include an item for failure of the State to complete the highway after the taking. That compensation is not legally permissible.
*213The measure of damages to land in cases of partial taking is the difference between the fair market value of the whole before the taking and the fair market value of the remainder after the taking (Acme Theatres v. State of New York, 26 N Y 2d 385; Diocese of Buffalo v. State of New York, 24 N Y 2d 320). The damages are computed by using values at the time of the taking (Chester Litho, Inc. v. State of New York, 27 N Y 2d 323; Wolfe v. State of New York, 22 N Y 2d 292) and the award must reflect the status of the property at the time of appropriation, not at the time of trial (Arlen of Nanuet v. State of New York, 26 N Y 2d 346, 354).
In this case, the trial court found consequential damages by using a before value of $4,500 per acre and an after value of $3,500 per acre. It then reduced this after value an additional 25% to $2,625 per acre to reflect the fact that the highway had not been complete at the time of trial, three years after the taking. The majority is affirming that judgment because it interprets the evidence of the claimants’ appraiser to be that the after value of the property was $1,500 per acre. Therefore, they find the court’s award is within the range of the testimony. In our view an examination of claimants’ evidence does not support this finding.
Claimants’ appraiser found a before value of $4,500 per acre for claimants’ land. He reduced this to $3,000 per acre after value for the remainder because of “ the crossing of roadways, the elevation of the new highway, the depression of a portion of the highway, the uncertainty of where the utilities would be, what sort of a drainage system would have to be installed, the fact it was now separated into three different portions rather than the one overall project, the separation from the school, [etc.].”
This testimony shows that the appraiser gave full weight to the effect of the proposed highway upon the property in his after value. This was the only after value which could be supported by accepted legal principles of valuation. Nevertheless, the appraiser then applied a factor for “ inordinate delay” in construction of the highway to this $3,000 per acre figure which further reduced the after value of $1,500. This was based on his conjecture that because of the uncertainty of the State’s plans, the remaining land was worthless except to a speculator who might pay half price for it. He corroborated this speculation by the use of present worth tables. He considered that three years had already elapsed since the taking, that no improvement could be anticipated for another five to *214six years and then he multiplied a present worth factor of .467 x $3,000 per acre after value for an anticipated eight-year delay, to arrive at a final after value of $1,401 per acre. This was improper and the evidence should not be used to establish a range to support the judgment. In discussing the rule in Wolfe v. State of New York (22 N Y 2d 292, supra) we stated that, “ claimant’s damages must be measured and fixed at the time of taking and based on what the State has taken, whether or not it intends to make full use of any or all of the property.” (Wayside Nurseries v. State of New York, 36 A D 2d 212, 214).
The accepted before and after value method of determining damages to property remaining after a partial taking .may properly consider the use to which the property will be put by the condemnor, but in considering the use of the condemned land as an element of damages it is not what or when the condemnor planned to use the property that is relevant but rather what the condemnor acquires the right to do (4A Nichols, Eminent Domain, § 14.241, subd. [3], p. 14-165; § 14.244, p. 14-219). In the present case, the State acquired property for the purpose of constructing a highway. A map was filed by the State showing details of the proposed highway construction and claimants were properly allowed to present evidence of the value of the remaining property taking into account the proposed highway for the purpose of establishing consequential damages and its future effect on the remainder of the land. The trial court went far beyond this and compensated claimants for speculative damages based upon the State’s delay in construction of the highway, not only at the time of trial, but for years ahead.
The consequential damages should be computed by finding
and the judgment should be modified to reflect this computation by reducing it the amount of $13,290.
Marsh and Moule, JJ., concur with Henry, J.; Simons, J., dissents and votes to modify judgment in an opinion, in which Del Vecchio, J. P., concurs.
Judgment affirmed with costs.