Kauffman v. State

Kane, J.

(dissenting): I agree with the conclusions of the trial court. To apply the rules for consequential damages set forth in Dennison v. State of New York (22 N Y 2d 409), there must have been a secluded, quiet and peaceful location prior to the taking that is directly affected by the appropriation, and results in destruction of the peace and quiet pre-existing the taking. The necessary *1005elements exist in this ease in sufficient measure to sustain the award. The removal of the “buffer zone,” the trees and the shrubs change claimants’ location from one of peace and quiet to one adjacent to a highly traveled highway, in plain view of the traffic with the noise, smell and constant intrusion that speeding vehicles produce each hour of the day and night. The fact that originally only a temporary easement was taken does not foreclose an award for severance damages to the remainder, when its diminution in value arises directly, in a succeeding chain of events, from the appropriation. (Mead v. State of New York, 24 A D 2d 1043 ; 4A Nichols, Eminent Domain [Rev. 3d ed.], § 14.21.) The other elements required by Dennison being present, I find the award within the range of acceptable testimony and it should be affirmed.