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the town or municipality unless such right is given by some express statute. At common law there is no such liability. It is unnecessary to cite authorities to support such a plain proposition. No one can doubt that such is the law of this State. It is quite sufficient to refer to one case just decided by this court (Sauer v. City of New York, 180 N. Y. 27). It was held in that case that where the original street was elevated upon columns ifty feet above the original surface that it was a change in the grade of the streets within the meaning of the principle just referred to. In that case the property owners upon the line of the street, as originally laid out and used for many years, suffered damages since the highway was elevated ifty feet above the original surface, and yet in that case we held that they could not recover and that the damage concededly sustained was damnum absque injuria. Now, If that is so in a case where the road is elevated fifty feet, why does not the same principle apply when it is depressed ten feet? In the case just cited the law, as it exists in this State, was examined and restated, and I am utterly unable to see what distinction there can be in principle between that case and the one at bar.

The case of Reining v. N. Y., L. & W. Ry. Co., 128 N. Y. 157, is cited as an authority in favor of the plaintiff's contention that the town of Kinderhook is liable for the plaintiff's damages. That case is often cited in cases of this character, and frequently misinterpreted and misunderstood. It was also cited and relied upon in the Sauer case, but just how it can be held to apply in a case of that kind it is difcult to perceive. In the first place the action was not against the municipality at all but against a railroad that sought to shield itself from liability under cover of municipal action, and what was dec in

case was a municipality had no power to change the grade of a street for the benefit of a railroad : that is to say, for the benefit of a private corporation. It had the undoubted right to make the change for the benefit of the public but not for any other purpose, and having made the change in order to accommodate a railroad the railroad was liable for damages to the abutting property owners. The language of Judge Andrews, in giving the opinion of the court in that case, points out very clearly the principle upon which the case was decided : “ We are not called upon to say whether there is any limit to the exercise of municipal authority or that the city cannot, in exercising the power to establish and alter the grade of streets, raise an embankment in a part of a street 11, in its judgment, this will promote the public convenience and the purposes of the street as a highway. But we think it cannot, under the guise of exercising this power, appropriate a part of a street to the exclusive, or practically to the exclusive use of a railroad company, or so as to cut off abutting owners from the use of any part of the street in the accustomed way, without making compensation for the injury sustained. We have held that the authority conferred by the General Railroad Law upon railroad companies to cross highways in the construction of their lines, authorizes their construction on, over or below the grade of the highway crossed, and that incidental changes of the grade of the street rendered necessary to accommodate railroad crossings, give no right of action to abutting owners who may sustain injury.

The conclusion we have reached, that the action of the city in granting permission to the defendant to construct an embankment in Water street, was not a change of grade in the street within the charter provisions, disposes of this question. The charter provision was intended to afford a remedy for damages from changes of grade where none existed before, and to cases to which it applies, the remedy is necessarily exclusive."

If the town of Kinderhook had permitted the railroads to make the changes, which the plaintiff complains of, for their own benefit and accommodation and not for the benefit of the public, much reasoning could be found in the Reining case to sustain the plaintifi's contention ; but since the town of Kinderhook did not authorize the things to be done which the plaintiff complains of, but, on the contrary, resisted it to the end, it is diffcult to see how the Reining case can be wrested from the true theory upon which it was decided to create a liability against the town. That all the things stated in the complaint causing the injuries to the plaintiff's property were merely acts in the process of changing the grade of the highway is beyond all question. Everytbing that was done of which the plaintiff complains was either permitted or commanded by statute. The law under which the change was made is a law authorizing or requiring changes of grade, and the acts complained of are acts required or permitted by the law under which the changes were made, and to say that it is not a change of grade at all, but something else, is to assert that what was done was outside of the statute and not within its scope and purpose.

Finally, it is said that section sixty-three of the Railroad Law imposes a liability upon the town for the plaintiff's damages. The language of that statute is not very clear to me. It does permit, under certain conditions, the purchase or aequiring of lands, easements or rights necessary for the purpose prescribed in the statute, since it might happen that in order to make the change more land might be required either to widen or to straighten the street. It seems that the railroad commissioners thought that something of that kind was necessary, since the complaint states that their order directed the purchase of lands. Whatever that section means it cannot help the plaintill to overcome the demurrer in this case. If this section of the statute does create any new rights in the plaintiff, or declare any new liability on the part of the town it is sufficient to say that the remedy of the plaintiff is not in this action against the town. Whether there is any other remedy to compel the defendants to provide, in some way, for the payment of his damages is a question not here before us, and I prefer to wait until it is. Certainly, it cannot be held in this case that the town must respond for the plaintiff's damages while the two railroads that instituted the proceedings and in whose behalf they were conducted shall go free. If there is any liability at all for the change in the grade of a street of which the plaintiff complains, it would seem to be a liability that should, at least, be shared by the railroads. But all that we now decide or can decide is that there are no facts stated in the complaint that create any liability of the town in question to the plaintifr for his damages. That is the only question now before us. It follows that the judgment appealed from should be affirmed, with costs, and the question certified answered in the negative.

HAIGHT, J. The question certified to this court is, “ Does the complaint of the plaintiff state a cause of action against the defendant, The Town of Kinderhook ?

The plaintiff, in substance, alleges that the railroad commissions of the State of New York had made an order“ 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 leasea and inanaged by the defendant New York Central and Hudson River Railroad Company where the Boston and Albany railroad crosses Chatham street, Niverville, town of Kinderbook aforesaid, and such order required the destruction and removal of the highway in front of plaintiff's manufacturing plant at Niverville aforesaid, upon the payment by the defendants of the value therefor." The complaint further alleges that the plaintiff is the owner, as trustee, of a tract of land upon which there is a large brick manufactory of the value of nine thousand dollars, in the town of Kinderhook, situated upon Chatham street, contiguous to the Boston and Albany railroad, that the defendants removed and destroyed such highway in front of the plaintiff's manufactory, as aforesaid, and have dug out and removed the highway to the depth of ten feet below the plaintiff's buildings, thus destroying his means of ingress and egress to and from such street, and that he has suffered damages by reason of such acts in the sum of five thousand dollars, for which he demands judgment.

The demurrer interposed by the railroad companies was sustained by the trial court, and no appeal has been taken therefrom, so that the only question brought up for review in this court is as to whether the complaint states a cause of action against the town of Kinderhook. It is apparent from the allegations of the complaint that the highway in front of the plaintiff's premises has been lowered a distance of about ten feet, so as to pass under the railroad crossing at that point, and that the change made in the highway operated to deprive the plaintiff of his easement of access thereo. Assuming this to be so, the question arises as to whether he can recover danages therefor in this action. The right of an abutting owner to Ingress and egrees to ana from his premises to the highway is a continuing easement running with the land, which may be acquired for a public use wnen necessary At common law the damages to the easements of an abutting owner, made by a change of grade in a public highway for the convenience and safety of the public traveling thereon, in the absence of legislative enactment providing a remedy, are damnum absque injuria and no right of action exists therefor. But if such remedy is given by statute where none exists at common law, it becomes exclusive and must be followed by those seeking relief. (1 uste v. Rogers Co., 169 N. Y. 73, 80; Sauer v. City of New York, 180 N. Y. 27, and authorities there cited.) It, therefore, becomes important to determine what, if any, remedy has been given by Htatute.

Under the Railroad Law, being chapter 565 of the Laws of 1890, as amended from time to time, we have an elaborate system provided for the crossing of highways h railroad Section sixty relates to steam railroads thereafter constructed across highways. Section sixty-one provides for the laying out of new streets or highways over existing railroads and section sixty-two provides that, upon the application of the mayor and common council of a city, the president and trustees of a village, or the town board of a town within which a highway crosses a steam railroad at grade, the Board of Railroad Commissioners may, upon the notice prescribed by the statute to all the parties interested, including the owners of lands adjoining such crossing, change the grade, in case the public safety so requires, so as to provide an under or an over crossing, 01 the discontinuance of a bighway and for the providing of a new highway crossing the railroad at another place and determine specifically the manner in which the same shall be made. By section sixty-five it is provided that where a crossing is made under section sixty of the act by a new railroad it shall pay all the expenses thereof : where it is made under section sixtyone, the railroad company chall sav one-half of the expenses and the municipality the other half, and where the crossing is changed under section sixty-two, the railroad company is required to pay one-half, the municipality one-quarter and the State the other quarter of the expenses. Where the crossing is changed under section sixty-two, all of the work shall be done by the railroad corporation subject to the supervision and approval of the Board of Railroad Commissioners, and the railroad company is required to pay the expenses of such work in the first instance and where lands. easements or rights are necessary to be acquired in carrying out such work the amount required to be paid therefor shall be primarily paid by the municipal corporation, but no clain for damages to property on account of the change or abolishment of any crossing under the provisions of the act shall be allowed unless notice of such claim is filed with the Board of Railroad Commissioners within six fronths after the completion of the work necessary for such change. After the completion of the improvement and the work is approved by the Railroad Commissioners an accounting is required to be had as to the amount of costs incurred in the constructirn of the improvement and in the acquiring of the necessary lands, easemonts and rights therefor and the expenses divided between the railroad company. the municipality and the State in the proportions specified. the Railroad Commissioners drawing upon the Treasurer of the State for the amount that the State is required to pay. Section sixty-jix gives authority to the Railroad Commissioners to institute proceedings on their own motion for a change of crossing when, in their opinion, the public safety and interests so require. And section sixty-seven requires the railroad corporations and the municipalities or the person or persons, to whom the decision of the Railroad Commissioners is directed to comply with the decision and in case of their failure they may be compelled by the Attorney-General so to do. The Supreme Court is given the power in all cases to compel compliance with the decision by mandamus.

Section sixty-three provides as follows: " The municipal corporation in which the highway crossing is located, may, with the approval of the railroad company, acquire by purchase any lands, rights or easements necessary or required for the purpose of carrying out the provisions of sections sixty, sixty-one and sixty-two of this act, but if unable to do so shall acquire such lands, rights or easements by condenination, either under the Condemnation Law, or under the provisions of the charter of such municipal corporation. The railroad company shall have notice of any such proceedings and the right to be heard therein."

We thus have the general scheme of the statute disclosed. The Railroad Commissioners are given the power to do away with grade crossings when the safety of the public so requires, and to specify the manner in which the crossing shall be constructed, but in doing this the owners of lands adjoining the crossing must have notice and an opportunity to be heard and their rights considered; but in any claim that they may make for damages notice thereof must be filed with the Board of Railroad Commissioners within the time specified, to which attention has been called. The provisions of section sixty-three, which we have quoted, provide for the acquiring by purchase of any lands, rights or easements necessary or required for the purpose o carrying out the contemplated improvement, If the improvement is of such a character as to necessitate the destruction of the easements of abutting owners of access it is apparently one of the rights contemplated by the statute, for which the abutting owners have been given a hearing. The municipal corporation can acquire these rights or easements by agreement with the parties only upon the consent of the railroad company. The railroad company, being required to pay one-half of the expenses of acquiring such rights or easements, has the right to become a party to such agreement, and if such company does not consent thereto the agreement cannot be made. But if the parties are unable to agree, then the provision of the statute is that such rights or easements shall be acquired by condemnation, either under the Condemnation Law or under the provisions of the charter of the municipal corporation ; but in that case the railroad company is required to have notice of such proceedings, to the end that the company may appear and be heard upon the question of damages. We, therefore, conclude that under a fair and reasonable construction of the statute the Legislature contemplated the acquiring of easements which would necessarily be destroyed by the construction of the improvement; but, as will be seen, they must be acquired in the manner pointed out by the statute, and that is by the agreement of the parties, or, in case they are unable to agree, by proceedings to condemn either under the Condemnation Law or under the provisions of the charter of the municipality. In that way the rights of the railroad coinpany, of the town and the State can be protected, as well as that of abutting owners who have their easements impaired. (Matter of Torge v. Vilm of Salamanca, 176 N. Y. 324.) When the easement is acquired by agreement or by condemnation it is acquired for all time, or so long as the improvement in the highway remains unchanged. This can not be accomplished under the complaint in this action. The remedy is one provided by statute, which did not exist at common law, and, therefore, under the authorities becomes exclusive. It may be claimed that the right of instituting the condemnation proceedings rests in the town, and that the town in this case refuses to institute such proceedings; if so, the plaintiff has his remedy through the writ of mandamus to compel the town board to take the necessary steps to acquire any easements that have been taken from him. Our conclusion, therefore, is that the complaint does not state facts constituting a cause of action, and that the judgment of the Appellate Division should be affirmed, with costs, and the question certified answered in the negative.

CULLINAN, Ch. J. I concur in the views of Judges O'Brien and Haight, that the act of the defendant, the town of Kinderhook, of which the plaintiff complains, was a change of the grade of the highway, and therefore, under the settled law of this State gave the plaintiff no cause of action. I do not think that the question of the defendant's liability is in any way affected by the fact that the change of grade was the result of proceedings instituted by the railroad company before the Railroad Commissioners, an application which the town resisted. The Legislature could direct the town, even against its will, to change the crossing of the railroad over the highway, and if in effecting such change any property rights were invaded or injured the Legislature could require the town to make compensation. Whether, under section 63 of the Railroad Law, an abutter is entitled to compensation for the injuries sustained by a change of grade, as held by Judge Haight, I think it unnecessary to now determine, though it must be conceded that such a construction of the section is in harmony with the present policy of the State, which, through legislation, has provided for indemnity to an abutter for the change made by the voluntary act of the municipal authorities.

CULLINAN, Ch. J., and WERNER, J., concur in result, in memorandum with O'BRIEN and HAIGHT, JJ.; GRAY, J., concurs with O'BRIEN, J.; BATTLETT and VANN, JJ., concur with HAIGHT, J.

Judgment affirmed, with costs, and question certified answered in the negative.

Highway Crossing Signs on Railroads.

Applications under section 33 of the Railroad Law, as amended by chapter 301

Laws of 1901.




Determination. July 6, 1905. This application, by the Buffalo and Susquehanna railway, under section 33 of the Railroad Law, as to highway crossing signs was filed with this Board on June 16, 1905. It asks the Board to approve of a form of highway crossing sign-board to be erected at points where said company's railway proposes to cross public highways at grade. Attached to the application is a blue print plan of the sign-board approval of which is asked.

This Board believes that the form of highway crossing sign shown by the blue print attached to the application is a proper one to be maintained at such crossings. This Board, therefore, hereby approves, under section 33 of the Railroad Law, the shape and design of a highway crossing sign-board (shown by a blue print plan thereof attached to the application in this matter on file in this office), to be established and maintained by the Buffalo and Susquehanna Railway Company at highway grade crossings of its railway between Wellsville and Buffalo.

This Board also, under section 33 of the Railroad Law, hereby prescribes that said sign-boards shall be severally located at said crossings so as to be readily seen by persons on the highway approaching the crossings and that the elevation of such sign-boards and the words of warning thereon shall be as shown by said blue print plan of said sign-board attached to the application in this matter on file in this office. (Grade Crossing Case No. 3363.)


Applications as to Motive Power on Street





Determination. March 23, 1905. Application, under section 100 of the Railroad Law, having been made to this Board on March 18, 1905, by the New York City Interborough Railway Company, a street surface railroad, for the approval of this Board of the operation by the overhead single electrical trolley system of motive power of its railroad on the following streets, avenues, roads and highways, to wit:

First.--Commencing at a point on the One Hundred and Fifty-fifth street viaduct, between Bradhurst and Eighth avenues and on a line parallel with the westerly line of the Manhattan Elevated Railway Company's station at Eighth avenue and One Hundred and Fifty-fifth street; running thence easterly and along said viaduct to the Central or Macomb's dambridge; thence running northerly upon and along said bridge to the westerly approach thereof known as the Sedgwick avenue approach, formerly called Ogden avenue approach thereof in the borough of the Bronx; thence northerly on and along said approach to its intersection with Jerome avenue; thence northeasterly on and along Jerome avenue to its intersection with Ogden avenue; thence on and along Ogden avenue northerly to its intersection with East One Hundred and Sixty-first street; thence westerly on and along East One Hundred and Sixty-first street to its intersection with Summit avenue; thence northerly on and along Summit avenue to its intersection with East One Hundred and Sixty-sixth street; thence westerly on and along East One Hundred and Sixty-sixth street to its intersection with Lind avenue; thence northerly on and along Lind avenue as it winds and turns to Aqueduct avenue; thence northeasterly on and along Aqueduct avenue to Kingsbridge road; thence easterly on and along Kingsbridge road to Reservoir avenue; thence northerly on and along Reservoir avenue to Sedgwick avenue; thence northeasterly on and along Sedgwick avenue to Perot street; thence northwesterly on and along Perot street to Nathalie or Boston avenue; thence northeasterly on and along Nathalie or Boston avenue to Heath avenue or Fort Independence street; thence westerly on and along Heath avenue or Fort Independence street to Fort Independence street; thence northerly on and along Fort Independence street to Bailey avenue; thence northerly on and along Bailey avenue to East Two Hundred and Thirty-eighth street; thence northwesterly on and along East and West Two Hundred and Thirty-eighth street to Corlear street or avenue.

The said route as it winds and turns crossing the following highways, avenues, streets, public places, etc.:

The viaduct in West One Hundred and Fifty-fifth street, as above-described in the borough of Manhattan; Sedgwick avenue, Exterior street, East One Hundred and Sixty-second street, East One Hundred and Sixty-fourth street, East One Hundred and Sixty-fifth street, Union place, East One Hundred and Sixty-seventh street, East One Hundred and Sixty-eighth street, East One Hundred and Sixty-ninth street, East One Hundred and Seventieth street, Merriam avenue, Ogden avenue, Undercliff place, Boscobel avenue, Featherbed lane, Montgomery avenue, Andrews avenue, East One Hundred and Seventysixth street, Macomb's road, Tremont avenue, East One Hundred and Seventy

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