Opinion
Argued November 21, 1912
Decided December 31, 1912
Irving R. Templeton for grade crossing commissioners, appellants.
Alfred L. Becker for New York Central and Hudson River Railroad Company, appellant. Clark H. Hammond, Corporation Counsel ( Jeremiah J. Hurley of counsel), for city of Buffalo, appellant.
Charles Diebold, Jr., for respondent.
It is manifest from the report and proceedings of the commissioners of appraisal that their award to the respondent represents in part at least the damages supposed to have been done to parcel No. 2 by the lowering of the grade of the New York Central and Hudson River railroad, where it crosses Main street, and the consequent loss of the possibility of ever obtaining switching connections with that railroad. In eliminating the grade crossing at this point, the railroad has been lowered 25.1 feet and Main street has been carried over it by a viaduct with a slight alteration of the street grade opposite parcel No. 2, the maximum change being 2½ inches. The change of grade in the street is so small as compared with the change of grade in the railroad that it is plain the commissioners treated the latter as constituting by far the larger element of damage.
Counsel for the appellants insist that the change of grade in the railroad could not properly be considered as an element of damage at all. The proceeding is based on section 406 of the Buffalo charter and section 12 of the Buffalo Grade Crossing Act. Section 406 of the charter provides that when the city shall alter the recorded grade of any street or alley the owner of any house or lot fronting thereon may, within one year thereafter, claim damages by reason of such alteration. Section 12 of the Buffalo Grade Crossing Act (L. 1888, ch. 345; amd. L. 1890, ch. 255) provides that if the grading commissioners decide that it is necessary for the purpose of carrying out any plan adopted by them "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," they 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." These enactments deal simply with changes of grade in public streets; not at all with changes of grade in the private right of way belonging to a railroad company. They afford a remedy, not enjoyed under the common law, to owners of land fronting on a public street whose property may be injured by a change in its grade. There is no attempt to extend the remedy to consequential injuries attributed to an alteration in the level of a neighboring railway line; nor in the Buffalo Grade Crossing Act do we find any indication of a legislative intent to confer a right of action upon landowners for damages otherwise occasioned in carrying out any general or special plan of improvement which the grading commissioners may adopt. So it is argued in behalf of the appellants that no statutory authority exists for awarding to the respondent any damages save such as are due to the very slight change in the grade of Main street, and that the commissioners of appraisal erred in compensating the owner for any injury supposed to have been caused by lowering the level of the Central lines. (See City of Detroit v. Detroit United Railway, 156 Mich. 106.)
But it is contended, in answer to this proposition, that the Court of Appeals is committed to the contrary doctrine by its affirmance, without opinion, of the orders in Matter of Grade Crossing Commissioners ( 59 App. Div. 498; affd., 168 N.Y. 659) and Matter of Grade Crossing Commissioners ( 146 App. Div. 885; affd., 203 N.Y. 628). Other cases are cited to the same effect.
In the case first cited, it is undoubtedly the fact that an award was upheld for damages caused by the change of grade of a railroad switch located on railroad property. The conditions, it is true, were different from those in the case at bar. There the railroad was adjacent to the property of the American Glucose Company alleged to be damaged, and there was an actually existing switch which the landowner, under a contract with the railroad company, had a right to have continued. Here parcel No. 2 is separated from the railroad by intervening property and never has enjoyed any switching privileges whatever. These differences, however, are not sufficient to prevent the affirmance in the former case from being an authority to the effect that under the legislation affecting changes of grade in Buffalo, commissioners of appraisal are not absolutely restricted to a consideration of the injury occasioned by a change of street grade, but may in a proper case make an award on account of damages done to property fronting on a railroad by a change in the railroad level. In my opinion we cannot now hold otherwise without overruling the American Glucose Company case.
Nevertheless, I think there should be a reversal here on the ground stated by the dissenting judges in the Appellate Division, namely, that the supposed injury to the respondent's lot, because deprived of the possibility of a private switch track, is too remote and speculative to be the basis of an award of damages. Parcel No. 3, lying between parcel No. 2 and the railroad, is held in private ownership. The respondent could not maintain a switch over it without a grant from the owners. The railroad could not obtain the right to run a switch over it by the exercise of the power of eminent domain, because such use would be private and not public. ( Hatfield v. Straus, 189 N.Y. 208.) The cases cited from other jurisdictions where damages have been held to be properly awarded for deprivation of switch connections are cases in which the property abutted directly on the line of the railway or where the intervening property was of such a character ( e.g., an alley) that it was customary for the state to permit switch tracks to be laid thereon. ( N.Y., New Haven, etc., R.R. Co. v. Blacker, 178 Mass. 386; South Park Commissioners v. Ayer, 237 Ill. 211. ) So many contingencies and possibilities would have to be treated as actualities to import that the respondent had really suffered any injury that the court is not warranted in upholding any award in the case at bar based upon supposed damage due to the lowering of the tracks of the New York Central and Hudson River railroad.
The orders of the Appellate Division and the Special Term should be reversed, with costs to each of the appellants filing a separate brief, and the proceeding remitted to the commissioners of appraisal with directions to make a new award, including no damages for the change of grade of the railroad.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WERNER and HISCOCK, JJ., concur.
Order reversed, etc.