no one method of valuation in condemnation of private water company is determinative
How later courts described this case
- no one method of valuation in condemnation of private water company is determinative
Written by the judges who cited it.
The opinion
McCurn, P. J.
(dissenting). " The court’s power to review the report of commissioners in condemnation proceedings is very limited. Every intendment is in favor of the action of the commission, and an award will not be set aside * * * unless it is obviously wrong, or unless it is such as to shock the sense of justice of the court.” (Adirondack Power & Light Corp. v. Evans, 226 App. Div. 490, 493 .)
The commissioners of appraisal in this proceeding are lawyers of high caliber and integrity and they report that they have given consideration to the Public Service Commission’s certification of annual earnings and rate of return, and the record does not, as I read it, contradict them in any respect. The weight to be accorded to the commission’s certification in fixing value is a matter resting in the judgment of the commissioners of appraisal. The report states that they have considered all the evidence and viewed the properties. They were aware that *669 the Water Service Corporation had many years ago acquired the riparian rights of the owners along Nine Mile Creek and those along Otisco Lake. The opinions of the experts as to the value of such rights were advisory only. The basic question on this appeal is whether or not the award is so excessive as not to be in the public interest. The majority opinion does not state that the award is excessive. The appellants have failed to establish that the award is excessive or that it will result in any detriment to the public interest. On the contrary, the circumstances here are such that unless the award is obviously wrong the public interest demands an early conclusion of these proceedings.
I agree with the reasoning set forth in the two opinions of the County Court. I, therefore, dissent and vote for affirmance of both the final order and the order denying the Public Service Commissi oil’s motion for abandonment and discontinuance of the proceedings.
All concur, except McCurn, P. J., who dissents and votes for affirmance in a separate opinion. Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.
Final order reversed, on the law, without costs, and proceeding remitted for a new appraisal before the same commissioners. Appeal from order entered February 17, 1955, dismissed as academic.