Opinion
March Term, 1901.
Spencer Clinton, for the appellants, the grade crossing commissioners.
Louis L. Babcock, for the respondent, the American Glucose Company.
Norris Morey and Edward R. Bosley, for the respondent, the Cary Safe Company.
The plans adopted by the grade crossing commissioners of the city of Buffalo, pursuant to the provisions of chapter 345 of the Laws of 1888, as amended, to obviate the crossing of streets at grade by railroads, provide for carrying Chicago street over the tracks of the New York Central and Hudson River Railroad Company and the Erie Railroad Company by a viaduct. Chicago street runs north and south, and a short distance south of these tracks Scott street runs westerly therefrom. The original plans provided that the southerly approach to the viaduct should commence or reach the grade of Chicago street at the northerly line of Scott street, but they were subsequently amended so as to extend this approach southerly across Scott street and fifty-five feet beyond, and thereby the grade of Chicago street at its intersection with Scott street was elevated two and eighty-eight hundredths feet. The main tracks of the Lehigh Valley Railroad Company run along Scott street at grade, and by a contract between that company and the grade crossing commissioners, which referred to said amended plans, it was provided that these tracks should also cross the approach to the viaduct at grade, and that the railroad company shall change the grade of its tracks in Scott street at its own expense; but that the grade crossing commissioners shall change the grade of Scott street outside of the tracks and pay all land damages incident to such change of grade and do all the work within the line of Chicago street necessary to change the grade of the street and tracks.
The Cary Safe Company owns the premises at the southwest corner of Chicago and Scott streets, having a frontage of 176 feet on Chicago street and 328.75 on Scott street. More than one-half the area of this parcel of land is covered by a building which occupies the entire Scott street frontage and 88 feet of the Chicago street frontage. The premises are used as a whole, constituting a single plant, for manufactory and warehouse purposes. The Cary Safe Company's building was so constructed on the Scott street side as to make it readily accessible and convenient for loading and unloading freight from the building through large doors onto and from wagons. The appraisal commissioners received, without objection, evidence of the damages sustained by the safe company by this change of grade of Scott street made by the city pursuant to the contract between the railroad company and the grade crossing commissioners, and took the same into consideration in making the award. The appellants contend that this was error.
The American Glucose Company owns the premises situate at the northwest corner of Chicago and Scott streets, bounded northerly by the Hamburg canal and northwesterly by lands owned by the New York Central and Hudson River Railroad Company. The dock tracks, so called, of the New York Central and Hudson River Railroad Company crossed Chicago street near the north bank of this canal and passed southwesterly over the canal and along the line of the glucose company's premises, and were conveniently connected by a switch and spur with the warehouse thereon. By a similar contract, except as to the apportionment of the expense, between this railroad company and the grade crossing commissioners, and the plans and detail drawings therein referred to, it was provided that these tracks should be depressed to pass under the Chicago street viaduct and that a lift bridge should be constructed at an elevation therein prescribed for carrying them over said canal. This necessitated the lowering of the tracks adjacent to the glucose company's premises and of the spur track connected therewith, and such change of grade was provided for by one of said detail drawings. The commissioners included in their award to the glucose company $500 for the damages caused by thus rendering its warehouse less accessible and convenient for delivering and receiving freight to and from railroad cars. It was also contended by appellants that no award could be legally made for such damages.
By section 12 of the Grade Crossing Act, so called, as amended by chapter 255 of the Laws of 1890, the Legislature granted a small measure of justice to property owners sustaining consequential damages, but for which, in most cases, they would have had no remedy. This statute provides that "if the commissioners shall decide that it is necessary for the purpose of carrying out any plan or modification or alteration of a plan adopted by them, that any street shall be closed or discontinued, or that the grade of any street or portion of any street or public ground shall be changed, and that any property may be injured thereby for which the owners or persons interested therein are lawfully entitled to compensation * * * the commissioners, by their chairman, may apply to a special term of the supreme court for the appointment of three commissioners to ascertain the compensation therefor to be paid to the owners of or parties interested in the land proposed to be taken or which may be injured."
The statute requires the commissioners to "view the lands sought to be taken or claimed to be injured," and declares that upon payment or deposit by the city of the sums awarded as provided in the order confirming the awards, "the fee of the lands sought to be taken shall vest in the city, and all claims for damages to the property claimed to be injured shall be extinguished." In pursuance of this statute the grade crossing commissioners decided that all of said property of the glucose company and the entire Scott street frontage, but only to the depth of fifty-five feet of the Cary Safe Company's property, "may be injured by the change of the grade of that part of Chicago street where it is carried over the viaduct provided for in said general plan, for which the owners or parties interested therein are lawfully entitled to compensation." Thereupon the grade crossing commissioners instituted this proceeding. The petition shows that the southerly approach to the viaduct commences at the northerly line of Scott street, which is according to the original plans, and it contains no reference to the amended plans extending the approach southerly and necessitating the change of grade of Scott street. Section 6 of the Grade Crossing Act (as amd. by Laws of 1892, chap. 353) authorized the commissioners to alter or amend their plans or the contracts made with the railroad companies, and they were empowered to enforce the execution of their plans by the railroad companies affected thereby. Under these circumstances, it seems clear to us that the damages for which these awards were made are within the scope and intent of the statute.
The grade crossing commissioners originally determined that only a small part of the Cary Safe Company's premises, consisting of seventy-five feet on Scott street and fifty feet on Chicago street, "might be injured," but their petition was subsequently amended so as to embrace the entire Scott street frontage to the depth, however, or frontage on Chicago street of only fifty-five feet. The appraiser commissioners in their report, after stating that the award is made "to the Cary Safe Company for the injury to lands described in the petition," added, "And your petitioners respectfully make further report that in arriving at the damage to be awarded to the Cary Safe Company for the injury to lands described in the petition we have taken into consideration the value of the plant as a whole, as well as the value of the property described in the petition. Standing alone, we do not consider that that part of the plant of the Cary Safe Company left out of the petition sustained any damage by reason of the change of grade in Chicago or Scott streets, and in determining the above amount as the damage to the property described in the petition, we have in view the fact that it is part of the whole plant of said company, and that such damage was caused by the change of grade in Chicago street and Scott street, and that the change of grade in Scott street was necessitated by the change of grade in Chicago street."
It is argued in behalf of appellants that the commissioners of appraisal were confined and limited by the determination of the grade crossing commissioners that only part of these premises may be injured. It is contended that the appraisal commissioners and court are bound by the determination of the grade crossing commissioners to make an arbitrary division of this parcel of land at the point where the southerly approach to the viaduct reaches the grade of Chicago street. The improvement of a parcel of land for use as a whole, and its utilization thereof in accordance therewith, and its adaptability for such use, cannot be thus ignored and disregarded. ( Matter of New York, L. W.R. Co., 27 Hun, 116; Matter of Union Elevated R.R. Co., 55 id. 163.) The easement of convenient access to and from Scott street for discharging and receiving freight was beneficial to the premises as a whole, and the injury thereto affected the value of the entire parcel, and not merely the few feet adjacent and embracing only part of the building. ( Bohm v. Metropolitan Elevated R. Co., 129 N.Y. 576; Newman v. Metropolitan Elevated R. Co., 116 id. 618; Stevens v. New York Elevated R.R. Co., 130 id. 95, 101; Bischoff v. New York Elevated R.R. Co., 138 id. 257, 264.)
We are of opinion that when the grade crossing commissioners determine, under this statute, that any part of a single parcel of land may be injured and move the court for the appointment of commissioners, the court and commissioners obtain jurisdiction to do full justice by making an award for damages to the entire parcel, if at least, as in this case, it be damaged as an entirety. The statute should not, in such case, be given a construction which would require the owner to resort to another remedy, of doubtful adequacy, for the damages sustained by the remainder of the parcel in connection with the whole. ( Matter of Grade Crossing Commissioners, 6 App. Div. 327; 154 N.Y. 550.)
The appeals of the railroad companies should be dismissed, with costs for their default in appearing, and the order appealed from should be affirmed, with separate bills of costs to the respondents appearing separately.
All concurred.
Order affirmed, with costs.