In re Grade Crossing Commissioners

6 A.D. 327, 40 N.Y.S. 520, 74 N.Y. St. Rep. 947

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinions

Herrick, J.:

This is an appeal from an order of the Supreme Court confirming the report of the commissioners appointed upon the application of the grade crossing commissioners of the city of. Buffalo to assess damages for the taking of land under section 12 of chapter 345 of the Laws of 1888, as amended by chapters 255 of the Laws of 1890 and 353 of the Laws of 1892.

In pursuance of their duties the grade crossing commissioners deemed it necessary to take Michigan street in the city of Buffalo over the railroad tracks which crossed it, and in order to do so it became necessary to build a long approach in such street on either side of the tracks in order to get up to the level of the bridge to be built across them. For that purpose they determined to widen . Michigan street where such approach was to be built and to take a strip of land thirty-one feet in width on each side of the street from the adjacent owners, the appellants in this case. They also propose to construct in the middle of Michigan street, thus widened,.and opposite to the appellants’ premises, a solid structure .with perpendicular walls of masonry filled in with earth as an approach to such crossing, such structure to' be fifty-six feet in width and of the height of thirteen feet and upwards, opposite the whole of appellants’ premises; that will leave a space thirty-three feet in width between such structure and the land of the appellant's after thirty-.one feet has been taken from them.

Section 12 of the act under which such grade crossing commissioners acted provides as follows: “ 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, or that any land shall be taken ineident to the changes of the grade of any street, or to widen any street, or in the event that the- commission shall undertake the work on the failure of the company or companies to do so, 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 pa/rties interested in, the land proposed to be taken, or which may be injured.”

Pursuant to this section the grade crossing commissioners applied for the appointment of commissioners, and a commission of three was thereupon appointed by the court. The order for their appointment does not appear in the record, so that we do not know' its exact terms, but assume that it follows the request of the petitioners.

Upon the hearing before the commissioners proof was made. as. to the value of the strip of land thirty-one feet in width which it is-proposed to take from the appellants. In addition to such value,, the owners offered to show the diminished value of the remainder ■ of the premises by reason of the structure so proposed to be erected in the street, and offered to show that the remainder of the land “ After taking the thirty-one feet for the proposed improvements herein, will be greatly damaged on account of the structures proposed to be put in Michigan street, under and in pursuance of the grade crossing act and plan.”

The commissioners excluded all evidence as to such diminished value and stated “ That in making their awards herein, they would exclude from consideration the effect of such proposed improvements or structure, in the streets, as bearing upon the diminished value of the remainder of said premises.”

Their ruling seems to have been made upon the theory that the improvement in question ivas but a change of the grade of the street, and that for such change of grade no damages can be awarded against the city or recovery be had by the property owners.

The decision was probably made, as it has been attempted to be supported upon this appeal, in reliance upon the cases of Conklin v. N. Y., O. & W. R. Co. (102 N. Y. 107); Ottenot v. N. Y., L. & W. R. R. Co. (119 id. 603), and Rauenstein v. N. Y., L. & W. R. Co. (136 id. 528).

I recognize the full force and effect of those decisions, and also that compensation for merely a change of grade cannot be obtained by an abutting owner except by provision of some special statute. (Folmsbee v. Amsterdam, 142 N. Y. 118.)

But I do not think those cases, nor that principle of law, are controlling in this case. The cases referred to were cases brought against railroad companies to recover damages for changing grades, and it was held that the railroad companies were acting by authority of, and in place of, the municipal corporation, and, as at common law, the municipality ivas not liable in damages for a change of grade, the railroad company Avas not; and, in the Ottenot case, the judges who concurred in the decision gave as the principal reason for such concurrence the fact that the plaintiff had another remedy under the charter of the city. The remedy, under the city charter, provided for compensation, not by the city, but by the property benefited by the change.

This case presents itself to the court, it seems to me, in an entirely different aspect from that of any of those cases.

Those were actions brought by persons who claimed to be damaged by what the court held to be simply a change of grade. This is a special proceeding to take from the appellants their property •for the purposes of a public improvement, which is not merely a change of grade, but for widening a street and making a general public improvement in which the whole city of Buffalo is interested, and the questions presented are, shall the appellants receive all the compensation for all the injury they sustain by reason of such improvement in this one proceeding, or must they be driven to another proceeding under the charter of Buffalo to recover part of such compensation, or does the statute under which these proceedings are taken,, bar them from recovering as a part of their damages for the taking of their property, any compensation for a change of grade ? x

In- determining these questions we must necessarily take into consideration the nature and. purpose of the proceedings and the law under which they are conducted.

The city of Buffalo is a great railroad center, many lines of railroad entering the city through its public streets; the number of roads and the number of streets through which they run, and which they intersect, are a continual menace to the lives and safety of the citizens, and, necessarily,, a source of great annoyance and expense to the railroads.

Under laws existing before the passage of the Grade Crossing Law, railroad corporations could obtain, and had obtained, the right of passage through the city, and changed the grade of streets to insure the convenience and safety of-the traveling public, as appears from the Ottenot Case (28 N. Y. St. Repr. 483).

And, under the charter of the city, a property owner could, in a proper case, obtain compensation for a change of grade. (§ 17, tit. 9, chap. 519, Laws of 1870.) -

Some of the railroad ■ companies availed themselves of the provisions of the then existing laws, to insure safety at street crossings, as appears from the cases referred to, to which a number of others might be added, but the relief thus afforded was totally inadequate.

To remedy -the evil it was necessary there should be some concert of action and provision made, whereby all the railroad companies could be made to co-operate with the city. As a means of providing such remedy, the present law, being chapter 345 of the Laws of 1888, as amended by chapter 255 of the Laws of 1890, and chapter 353 of the Laws of 1892, commonly called the Grade Crossing Act, was enacted. The 1st section of the original law appointed commissioners, who were authorized to enter into contracts from time to time in behalf of the city of Buffalo, with any railroad company or companies, “ for the relief of the city from the obstruction of the streets of the city of Buffalo by railroads crossing the same at grade, upon plans adopted, or to be adopted, by said commissioners as hereinafter provided.”

The law provides for the adoption of general plans, and also provides for an apportionment of the expenses of such improvements between the railroad companies and the city at large, in proportions to be determined by the commissioners; and a part of the expenses to be so apportioned are the damages that may be awarded under section 12 of the act.

Under the provisions of the act streets may be widened, property taken and grades changed; and it provides for the appointment of commissioners to award compensation for property taken or injured. It is apparent that it was the intention to confine all claims for injuries caused by such improvements to the proceeding taken pursuant to such act, for it provides that, after the compensation has been awarded, and- the amount thereof paid or deposited by the city for the benefit of those entitled thereto, “ 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.” (§ 12.)

For the purpose it was intended to accomplish, it seems to me this act must be held to supersede all pre-existing laws as to the manner of procedure and the forum in which it is to be conducted. And the changes made under it must be regarded as public improvements for the general benefit of the whole city, otherwise there would be no propriety, even if there would be power, which I doubt, to make the expense of such improvements, or any part thereof, a general charge upon the city.

With this general statement of the object of the statute, let us examine the question here presented.

For the purpose of affording the relief sought, the commissioners adopted a plan which required the widening of Michigan street; that required the physical taking and appropriation of a portion of appellants’ property, and the erection in front of the remainder, and in the middle of the street, of the roadway or structure heretofore described. The commissioners of appraisal were required to award compensation for the land taken. What, is the measure of that compensation ?

It is contended oh the part of the respondents that under the literal reading of the statute no compensation can be awarded for mere- injury to the premises, unless the grade crossing commissioners decide that in carrying out their plans, “ property may be injured,” and apply for the appointment of commissioners to ascertain the compensation.to be paid by reason of such injury, and that in this 'case, the grade crossing commissioners not having decided that any injury would result to the appellants’ property, nor asked to have any commission appointed to ascertain the compensation to be paid for any injury to their property, the injury that may result to the remainder of the appellants’ property, or the diminished value - thereof by reason of the proposed improvement, •cannot be taken into consideration in these proceedings.

Under the decision in the Story Case (90 N. Y. 122) and the cases that follow it, I have very serious doubts whether the right to compensation for injury to property can be left to the determination of any such tribunal as the grade crossing commissioners. Anything that affects-nr limits the free use and enjoyment of one’s ■ property, or of the easements or appurtenances thereto, is a •deprivation or taking of property within the meaning of the Constitution, and .the owner has the right to have, a constitutional tribunal pass upon the question as to. whether he has been deprived •of it, and if so what compensation he is entitled to therefor. But, .assuming that the grade crossing commissioners are properly vested with that power, still I think the interpretation thus sought to be placed upon the statute is too narrow.

The statute provides for the decision of the commissioners upon •several matters. If they decide “ 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,” that is the case of injury to' property, but where there is no actual physical taking or. appropriation thereof. Then there is the second class of cases where there is an actual physical taking and appropriation of the soil itself as follows : “ or that any land shall be taken incident to the changes of the grade of any street, or to widen any street.”

The commissioners have decided in this case “ that it is necessary for the purpose of carrying out said plan adopted by them that the lands hereinafter described (appellants’ property) shall be taken to widen Michigan street.” And they applied for a commission “ to ascertain and report the just compensation to be paid to the owners and parties interested in the land for taking the same.”

Having decided to appropriate the land for the purpose of widening the street, the compensation therefor must be determined as in other cases of the appropriation of lands for public purposes.

They cannot, by any action or non-action of theirs, change any rule of law, or eliminate, from the consideration of the commissioners of appraisal, any element of damage that should otherwise be taken into consideration. ■

“ Generally, in taking land, the rule may be said to be to pay the full value of the land taken at its market price, and no deductions can be made from that value for any purpose whatever. Then, as to the land remaining, the question has been, to some extent, mooted, whether the company should pay for the injury caused to such land by the mere taking of the other property, or whether, in case the proposed use of the property taken would" ■ depreciate the value of that which was not taken, such proposed use could be regarded, and the depreciation arising therefrom be awarded as part of the consequential damages suffered from the taking. I think the latter is the true rule.” (Bohm v. M. E. R. Co., 129 N. Y. 576-585.)

Just compensation. for land taken is, first, the full value of the part taken, and, second, a fair and adequate compensation for all injuries sustained by the residue by reason of the changed condition and erection of the proposed construction. (Newman v. M. E. R. Co., 118 N. Y. 618.)

“ The true rule, the only rule which will do equal justice to all parties, is .to determine what will be .the effect of the proposed change upon the market value of the property. The proper inquiry is, what is it now fairly worth in the market, and what will it be worth after the improvement is made ? ” (Troy & Boston R. R. Co. v. Lee, 13 Barb. 169; approved in Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423-433.)

It seems to me that the proposed plan of improvement must be considered as a whole, and the erection of the structure in the street as a part or incident of it; and if such improvement, or any part of it, will diminish the value of appellants’ remaining property, then that■ fact should be taken ' into consideration by the commissioners.

It must be borne in mind that this is not an action or proceeding to secure damages or compensation for a mere change of grade, but that it is a proceeding to take from the appellants their property, and that one of the items of damage suffered by them is the proposed change in the street, which we will assume to be a change of grade. Under the law as it has existed in the city of Buffalo since 1870, at least, they are entitled to compensation when they have suffered damages from a change of grade, and there is nothing in the Grade Crossing Act from which we can infer that it was intended to take away any existing rights ; furthermore, after the passage of the Grade Crossing Act, the. same provisions as to compensating property owners for damages sustained by change .of grade was placed in the revised charter of Buffalo. (§ 406, chap. 105, Laws of 1891.)

So that at the time of these proceedings the statute gave property owners a right to compensation for injury to their property sustained by change of grade.

But it is said that such compensation cannot be obtained in these proceedings; that it must be sought under the charter of the city by the proceedings therein provided for.

I cannot assent to that proposition for several reasons: First, in taking land for jrablic streets as in this case, one of the necessary elements of damage is that which may result from a change of grade. One of the reasons given why damages will not be allowed for a mere change of grade, unless permitted by express statute, is that if the land for the street “ became such by dedication, compensation for the easement was expressly waived'. If taken by right • of eminent domain, the compensation paid covered all the damages sustained, among which were necessarily embraced such as might flow from a change of grade required for the public use and convenience.” (Conklin v. N. Y., O. & W. R. Co., 102 N. Y. 107-111; approved in Rauenstein v. N. Y., L. & W. R. Co., 136 id. 528-534.)

It does not appear whether Michigan street .became such by dedication, or proceeding by eminent domain. In either event it does not seem to me that the appellants are excluded from compensation. I do not think the donation of a portion of appellants’ lot for street purposes can be held to be a waiver of any damages resulting from the future taking of a large portion of what remained of their lots after such dedication. Nor if it was taken under proceedings by eminent domain do I think it can be held that in that proceeding damages were awarded that would embrace any damages that might result to the remainder of the lots after additional portions thereof should be taken. In other words, the taking of portions of the present lots is to be considered as if no part of them had ever before been either given or taken away for public purposes, and, therefore, change of grade or a possible change of grade is under the cases above referred to a proper, indeed a necessary, element of damage to be taken into consideration.

Second. That the law under which these proceedings are taken was intended to afford the exclusive remedy for all damages sus-r tained, section 12 providing, as heretofore stated, that upon payment or deposit being made of the compensation awarded, “ 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.” Third, that if compensation was to be made for damages caused by this improvement, Under the provisions of the charter of Buffalo for cases of change of grade, it would be-in conflict with the spirit and intention of the Grade Crossing Act. By that act it was intended, as we have heretofore seen, to apportion the expense of the improvement between the railroads and the city. Under the charter the damages awarded for a change of grade must be assessed upon the real estate benefited. (§ 406, chap. 105, Laws of 1891.)

If damages then should be awarded for the change of grade under the charter it would be assessed, not upon the whole city, but upon the real estate held to be especially benefited by the change of grade; the general benefit derived by the whole city could not be taken into consideration, and the railway companies would not necessarily contribute to pay any portion of the expense.

The order confirming the report of the commission should, therefore, be reversed and the matter remitted to new commissioners to be appointed by the. court, with costs and disbursements of this appeal to the appellants.

Landon,, J., concurred ; Putnam, J., concurred in result; Pabkeb, P. J., and Merwin, J., dissented: