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LXV.

IN THE MATTER OF THE APPLICATION, UNDER SECTION 68 OF THE RAILROAD LAW, OF THE UNION RAILWAY COMPANY OF NEW YORK CITY, AS TO ITS DOUBLE TRACK ELECTRIC RAILWAY CROSSING THE SINGLE TRACK OF THE PORT MORRIS BRANCH OF THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD ON ST. Ann's AVENUE JUST NORTH OF ONE HUNDRED AND FORTYNINTH STREET, BOROUGH OF THE BRONX, NEW YORK CITY.

November 28, 1904.

A determination in the matter will be found on page 190, first volume, report of this Board for 1903. The determination was that the crossing in question should be at grade and be protected by a flagman to be employed by the Union Railway Company. At the time of writing this report the crossing has not been constructed, but the steam railroad is being changed from grade to a subway at this point and the street railroad crossing when made will be on the avenue above the steam railroad. (Case No. 2920.)

LXVI.

IN THE MATTER OF THE APPLICATION OF THE BUFFALO AND SUSQUEHANNA

RAILWAY COMPANY, UNDER SECTION 60 OF THE RAILROAD LAW, FOR A DETERMINATION OF THE MANNER IN WHICH ITS SINGLE TRACK RAILWAY SHALL CROSS STREETS, AVENUES AND HIGIWAYS IN THE COUNTY OF ALLEGANY.

November 28, 1905.

See page 121, first volume, 1904 report of this Board. At the time of writing this report these crossings are under construction, but not yet completed. See Nos. VII and vlil in this volume under this title. (Grade Crossing Case No. 179.)

LXVII.

IN THE MATTER OF THE APPLICATION OF THE BUFFALO AND SUSQUEHANNA

RAILWAY COMPANY, UNDER SECTION 60 OF THE RAILROAD LAW, FOR A DETERMINATION OF THE MANNER IN WHICH ITS SINGLE TRACK RAILWAY SHALL CROSS STREETS, AVENCES AND HIGHWAYS IN THE COUNTY OF WYOMING.

November 28, 1905.

See page 124, first volume 1904 report of this Board. At the time of writing this report these crossings are under construction but not yet completed. (Grade Crossing Case No. 480.)

IN

OF

LXVIII. IN THE MATTER OF THE APPLICATION OF THE BUFFALO AND SUSQUEHANNA

RAILWAY COMPANY, UNDER SECTION 60 OF THE RAILROAD LAW, FOB A DETERMINATION OF THE MANNER IN WHICH ITS SINGLE TRACK RAILWAY SHALL CROSS STREETS, AVENUES AND HIGHWAYS

THE COUNTY ERIE,

November 28, 1905. See page 126, first volume 1904 report of this Board. At the time of writing this report these crossings are under construction but not yet completed. See Nog. XX, XXI, XXII in this volume under this title. (Grade Crossing Case No. 478.)

А

LXIX. IN THE MATTER OF TIE APPLICATION OF THE BUFFALO AND SUSQUEHANNA

RAILWAY COMPANY, UNDER SECTION 60 OF THE RAILROAD LAW, FOR DETERMINATION OF THE MANNER IN WHICH ITS SINGLE TRACK RAILWAY SHALL CROSS STREETS, AVENUES AND HIGHWAYS IN THE COUNTY OF CATTARAUGUS.

November 28, 1905. See page 128, first volume 1904 report of this Board. At the time of writing this report these crossings are under construction but not yet completed. See Nos. XIX, XX in this volume under this title. (Grade Crossing Case No. 481.)

LXX.

IN THE MATTER OF A CROSSING AT GRADE OF THE TARRYTOWN, WHITE PLAINS

AND MAMARONECK RAILWAY AND THE NEW YORK AND HARLEM RAILROAD (LEASED TO AND OPERATED BY THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY) ON RAILROAD AVENUE IN WHITE PLAINS.

November 28, 1904. At page 718, first volume report of this Board for 1900, will be found a report of the electrical expert of the Board as to grade crossings of the Tarrytown, White Plains and Mamaroneck railway and steam railroads in White Plains and a statement of the action taken by the Board in the matter. Under date of July 28, 1904, the electrical expert of the Board made another report in this matter as to this crossing, and the Board directed that the Tarrytown, White Plains and Mamaroneck railway should, at its own expense, install a derailing switch in its track on each side of this crossing, said derailing switch to be interlocked with home and distant signals on the steam railroad. At the time of writing this report these switches and signals have not yet been installed. A metal trough has been constructed on the trolley wire. (See p. 530, 1st vol., report of 1903, and p. 138, report of 1904.) The matter of changing this highway crossing from grade to an undercrossing of the steam railroad is pending before this Board. (Case No. 2229.)

LXXI.

IN THE MATTER OF THE APPLICATION OF THE OLEAN STREET RAILWAY COMPANY

FOR A CROSSING OF THE PITTSBURG, SHAWMUT AND NORTHERN RAILROAD IN THE UNDERGROUND CROSSING AT CASE'S IN THE TOWN OF GENESEE, ALLEGANY COUNTY, NEW YORK.

November 28, 1905.

See page 148, report of this Board for 1904. The street railway is now constructed and operating in said undercrossing. (Case No. 2784.)

LXXII.

IN THE MATTER OF THE APPLICATION OF THE WARREN AND JAMESTOWN STREET

RAILWAY COMPANY, UNDER SECTION 68 OF THE RAILROAD LAW, FOR A DETERMINATION AS TO WHETHER ITS SINGLE TRACK ELECTRIC RAILWAY SHALL CROSS THE DUNKIRK, ALLEGANY VALLEY AND PITTSBURG RAILROAD (STEAMOPERATED BY THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY), ABOVE, BELOW OR AT THE GRADE OF SAID STEAM RAILROAD.

November 28, 1905. See page 151, first volume, report of this Board for 1904. The determination was that street railway should cross the steam railroad in an undercrossing. At the time of writing this report this undercrossing has been constructed. (Case No. 3346.)

LXXIII.

IN THE MATTER OF THE APPLICATION OF THE PUBLIC IMPROVEMENT COMMISSION

OF THE CITY OF COHOES FOR A DETERMINATION AS TO THE MANNER IN WHICH HIGH STREET, IN SAID CITY, SHALL BE CARRIED ACROSS THE TRACKS OF THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.

November 28, 1905.

See page 53, first volume report of this Board for 1900. The determination was that the street railway should cross the steam railroad at an underundercrossing was constructed and is in use. (Grade Crossing Case No. 154.)

LXXIV.

IN THE MATTER CF THE APPLICATION OF THE CITY OF NEW ROCHELLE, UNDER

SECTION 61 OF THE RAILROAD LAW.

See page 153, first volume, report of this Board for 1904. The determination was that two undercrossings and an overcrossing of the New York, New Haven and Hartford railroad should be constructed. The undercrossings and overcrossing have been constructed, but at the time of writing this report the work has not yet been approved by this Board. (Grade Crossing Case No. 332.)

LXXV.

IN THE MATTER OF THREE APPLICATIONS OF THE NEW YORK, ONTARIO AND

WESTERN RAILWAY COMPANY, UNDER SECTION 60 OF THE RAILROAD LAW, AS

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November 28, 1905. The determinations in these matters will be found at pages 201, 202 and 209, first volume, report of this Board for 1903. The construction of the second track at the crossings in question is progressing. (Grade Crossing Cases Nos. 446, 447 and 445.)

LXXVI.

IN THE MATTER OF THE APPLICATION OF THE UTICA AND MOHAWK VALLEY

RAILWAY COMPANY (STREET SURFACE, ELECTRIC,) UNDER SECTION 68 OF THE RAILROAD LAW, AS TO THE CONSTRUCTION OF A SECOND TRACK OF ITS RAILDELAWARE, LACKAWANNA

WESTERN (STEAM), IN GENESEE STREET IN THE TOWN OF New HARTFORD, ONEIDA COUNTY.

December 5, 1904.

WAY

ACROSS

THE

AND

RAILROAD

The determination in this matter will be found at page 206, first volume, report of this Board for 1903. At the time of writing this report the second track has not been constructed at this crossing.

LXXVII.

IN

APPLICATION OF THE LOWVILLE AND BEAVER RIVER RAILROAD COMPANY, UNDER SECTION 60 OF THE RAILROAD LAW, FOR A DETERMINATION OF THE MANNER

WHICH ITS SINGLE TRACK RAILROAD SHALL CROSS HIGHWAYS IN THE COUNTY OF LEWIS.

November 28, 1905. See page 139, first volume, report of this Board for 1904. The construction of the crossings in question is completed. (Grade Crossing Case No. 492.)

Decisions of Courts as to Questions Arising Under the

Grade Crossing Law.

I.

COURT OF APPEALS.

ALBERT T. SMITH, as Trustee, Appellant, v. BOSTON AND ALBANY RAILROAD COMPANY

et al., Defendants, and THE TOWN OF KINDERHOOK, Respondent. 181 N. Y. 132; 99 App. Div. 94, affirmed.

APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1904, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer.

The following question was certified : Does the complaint of the plaintiff state a cause of action against the defendant, The Town of Kinderhook?

The nature of the action and the facts, so far as material, are stated in the opinion.

O'BRIEN, J. The defendants in this action severally demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer of the two railroads, defendants, was sustained at the Special Term, but the demurrer interposed by the town of Kinderhook was overruled. The plaintiff took no appeal from the decision of the Special Term sustaining the demurrers of the two railroads, and, therefore, these two defendants have, for all practical purposes, dropped out of the case. The defendant, the Town of Kinderhook, did appeal from the decision of the Special Term overruling its demurrer and on appeal the decision was reversed and the plaintiff comes here.

In this situation it is obvious that the only question presented by the appeal is, whether the said complaint on its fact states a good cause of action against the town of Kinderhook for the damages alleged to have been sustained by the plaintiff, resulting from the change of grade in the highway in front of his property. There is no doubt that the allegations of the plaintiff ars sufficient to show that the plaintiff's property has been damaged by the changes made in the highway. The only question is whether the plaintiff states a case of liability for such damages on the part of the town. It is, therefore, important to get a clear view of the facts stated in the complaint as the ground of the liability of the town to the plaintiff for his damages. The averments of the complaint on that point are substantially as follows:

(1) That prior to the first day of January, 1903, an order was granted by the railroad commissioners of the State of New York authorizing, empowering and directing the defendants to purchase land described in such order and directing such defendants to make an underground crossing under the Boston and Albany railroad, which is leased and managed by the defendant, the New York Central and Hudson River Railroad Company, at the point where the Boston and Albany railroad crosses Chatham street, Niverville, town of Kinderhook aforesaid.

(2) That such order was aflirmed by the Court of Appeals prior to January, 1903.

(3) That the proceeding taken as aforesaid was commenced by the defendants, railroad companies, and it was defended by the defendant the Town of Kinderhook.

It is nowhere alleged that the order above described directed the defendants to purchase any lands of the plaintiff, and it is nowhere alleged that they took any such lands outside of the limits of the highway. There is a general allegation in the complaint charging the defendants with having destroyed the highway in front of the plaintiff's premises, but that is obviously not a fact, but a conclusion. All it means or can mean is that, in the process of changing the crossing to an underground crossing. the highway in front of the plaintiff's premises was depressed below the original level to the extent of ten feet. Whether a highway has been destroyed by changes in the surface, either by elevating or depressing the road as it originally existed, is, at best, only a conclusion from the actual facts. There certainly were changes made in the highway, and when such changes are stated in detail the pleader does not strengthen his cause of action by adding to the facts the conclusions of his own mind that the highway was destroyed.

It is quite obvious that there must be some flaw in the reasoning process that would make the town of Kinderhook liable to the plaintiff in damages for the changes made in the highway which the town never wanted, never asked for, and which it opposed and resisted to the end, which came when this court affirmed the order directing the overhead crossing of the railroad to be changed to an underground crossing. Before we can accept the proposition that the town is liable for damages, under such circumstances, it should be made so clear upon principles of law, or natural justice, as to be irresistible.

It is settled law in this State that the owner of property abutting upon a highway which is graded or changed by the public authorities has no right of action against

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