Opinion
September, 1911.
Robert Fish, for claimant.
Thomas Carmody, Attorney-General, Frank W. Brown, Deputy Attorney-General, and M.H. Quirk, for State.
The claimant was entitled to recover the difference in the value of his leasehold before and after the appropriation; but, having relinquished his claim for damages except to the building which he had placed upon the leased premises, he is entitled to an award representing the difference in the market value of the building before and after the appropriation.
He cannot be deprived of the compensation to which he is entitled under the Constitution by the method adopted by the State. When the appropriation was made he was in possession of the property under a written lease which had not expired. This possession was notice to the State, even if the lease was not recorded; but he also notified in writing the Superintendent of Public Works and the State appraiser of his claim under the lease. Notwithstanding this knowledge, the State paid the owner what is now claimed by the State to be the full value of the property, including the leasehold interest, and the State urges that the claimant must look to the owner for his compensation.
This we do not think he is required to do. If the State made a contract with the owner for the value of the fee, including the leasehold, it should have seen to it that the lessee's claim was taken care of before paying the consideration. Not having done so, he is entitled to come into this court and have his claim adjusted. If the contract did not include the leasehold interest, the lessee is entitled to have it adjusted in these proceedings. He cannot be deprived of his property without notice and without an opportunity to be heard in some tribunal.
The evidence of value given by the claimant related to the cost of reproducing the building. This is not the measure of damages. The true measure is the market value of the property taken, and so an award of $450 is made.
SWIFT, J., concurs.
Judgment accordingly.