Page, J.:
From July 1, 1886, to March 21, 1900, George W. Sauer, the relator’s intestate, was the owner in fee of lands at the southwesterly corner of One Hundred and Fifty-fifth street and Eighth avenue in the borough of Manhattan, city of New York. During that period and until February, 1898, when they were destroyed by fire, there stood frame buildings, which were used as a place of public resort, recreation and amusement. Title to the fee to the land included within the lines of Eighth avenue and One Hundred and Fifty-fifth street, adjoining the premises, had been acquired by the city of New York for street purposes, and the street and avenue graded according to their legally established grade, long prior to the year 1886. Bradhurst avenue is the next street to the west of Eighth avenue. To the west of Bradhurst avenue, at its intersection with One Hundred and Fifty-fifth street, and substantially parallel with Bradhurst avenue, there is a bluff, the top of which is about seventy feet above the grade of Bradhurst avenue. From the foot of the bluff easterly to the Harlem river the land is substantially on a level plane. One Hundred and Fifty-fifth street had never been regulated or graded westerly from its intersection with Bradhurst avenue to the face of the bluff. By chapter 576 of the Laws of 1887 the city of New York was authorized to improve and regulate the use of One Hundred and Fifty-fifth street, and for that purpose to construct an elevated iron roadway, viaduct or bridge for the passage of animals, persons, vehicles and traffic from St. Nicholas place to Macomb’s Dam bridge. Work was commenced on this viaduct August, 1890, and accepted by the city as complete October, 1893. One Hundred and Fifty-fifth street is one hundred feet in width. The viaduct is built upon two lines of iron columns, which are eighteen inches square, and are placed in the roadway of the street, and are about forty-three feet between the center [153] of the columns, measuring from east to west, and about forty-feet from north to south, and are about ten feet from the curb on either side of the street. The platform of the viaduct is from fifty to fifty-eight feet and six inches above the pavement of the street in front of the premises, and has an extreme width of about sixty-three feet, and is about eighteen feet distant from the building line of the premises. The platform has a roadway for vehicular traffic and on each side a walk for pedestrians; it is paved with asphalt and paving blocks and is a solid structure. On Eighth avenue, in front of the premises, it extends southerly about thirty feet, and has two supporting columns eighteen inches square, placed upon the sidewalk, and about fifteen feet from the building line of the premises, the platform extending to within ten feet of the premises. A stairway to the platform is built from within the lines of One Hundred and Fifty-fifth street in front of the premises to the southwesterly corner of One Hundred and Fifty-fifth street and Eighth avenue. The surfaces of One Hundred and Fifty-fifth street and of Eighth avenue as they existed on June 15, 1887, have not been changed, and the surfaces of said streets remain as before, open to the public, except for the obstruction of the columns and stairway. The viaduct, during the ownership of relator’s intestate of the premises, was used solely as a public highway for horses, vehicles and pedestrians and for no other purpose. Recognizing the fact that damage had been suffered by relator’s intestate, for which compensation had not been made, the Legislature passed an act (Laws of 1894, chap. 512) empowering the board of estimate and apportionment of the city of Hew York, in its discretion, to examine into the claim for damages and in its discretion to make an appropriation for the payment thereof. Ho action was' taken by the said board. The relator’s intestate began two separate actions against the city. The first a common-law action for damages in which he recovered a judgment, which was reversed. (Sauer v. Mayor, 44 App. Div. 305.) The second an equity action in which he was defeated. (Sauer v. City of New York, 90 App. Div. 36; 180 N. Y. 27; 206 U. S. 536.)
In the case of Sauer v. City of New York (180 N. Y. 27) the court held that the plaintiff could not recover for the impair[154] ment of his easement of light, air and access, upon the theory of the elevated railroad cases. It intimated that he might have a remedy under existing statutes. The court said (p. 30): “ The fee of the street having been acquired according to the provisions of the statute, we must assume that full compensation was made to the owners of the lands through which the streets and avenues were laid out, and that thereafter the owners of lands abutting thereon hold their titles subject to all of the legitimate and proper uses to which the streets and public highways may be devoted. As such owners they are subject to the right of the public to grade and improve the streets, and they are presumed to have been compensated for any future improvement or change in the surface or grade rendered necessary for the convenience of public travel, especially in cities where the growth of population increases the use of the highways.”
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Page, J.:
From July 1, 1886, to March 21, 1900, George W. Sauer, the relator’s intestate, was the owner in fee of lands at the southwesterly corner of One Hundred and Fifty-fifth street and Eighth avenue in the borough of Manhattan, city of New York. During that period and until February, 1898, when they were destroyed by fire, there stood frame buildings, which were used as a place of public resort, recreation and amusement. Title to the fee to the land included within the lines of Eighth avenue and One Hundred and Fifty-fifth street, adjoining the premises, had been acquired by the city of New York for street purposes, and the street and avenue graded according to their legally established grade, long prior to the year 1886. Bradhurst avenue is the next street to the west of Eighth avenue. To the west of Bradhurst avenue, at its intersection with One Hundred and Fifty-fifth street, and substantially parallel with Bradhurst avenue, there is a bluff, the top of which is about seventy feet above the grade of Bradhurst avenue. From the foot of the bluff easterly to the Harlem river the land is substantially on a level plane. One Hundred and Fifty-fifth street had never been regulated or graded westerly from its intersection with Bradhurst avenue to the face of the bluff. By chapter 576 of the Laws of 1887 the city of New York was authorized to improve and regulate the use of One Hundred and Fifty-fifth street, and for that purpose to construct an elevated iron roadway, viaduct or bridge for the passage of animals, persons, vehicles and traffic from St. Nicholas place to Macomb’s Dam bridge. Work was commenced on this viaduct August, 1890, and accepted by the city as complete October, 1893. One Hundred and Fifty-fifth street is one hundred feet in width. The viaduct is built upon two lines of iron columns, which are eighteen inches square, and are placed in the roadway of the street, and are about forty-three feet between the center [153] of the columns, measuring from east to west, and about forty-feet from north to south, and are about ten feet from the curb on either side of the street. The platform of the viaduct is from fifty to fifty-eight feet and six inches above the pavement of the street in front of the premises, and has an extreme width of about sixty-three feet, and is about eighteen feet distant from the building line of the premises. The platform has a roadway for vehicular traffic and on each side a walk for pedestrians; it is paved with asphalt and paving blocks and is a solid structure. On Eighth avenue, in front of the premises, it extends southerly about thirty feet, and has two supporting columns eighteen inches square, placed upon the sidewalk, and about fifteen feet from the building line of the premises, the platform extending to within ten feet of the premises. A stairway to the platform is built from within the lines of One Hundred and Fifty-fifth street in front of the premises to the southwesterly corner of One Hundred and Fifty-fifth street and Eighth avenue. The surfaces of One Hundred and Fifty-fifth street and of Eighth avenue as they existed on June 15, 1887, have not been changed, and the surfaces of said streets remain as before, open to the public, except for the obstruction of the columns and stairway. The viaduct, during the ownership of relator’s intestate of the premises, was used solely as a public highway for horses, vehicles and pedestrians and for no other purpose. Recognizing the fact that damage had been suffered by relator’s intestate, for which compensation had not been made, the Legislature passed an act (Laws of 1894, chap. 512) empowering the board of estimate and apportionment of the city of Hew York, in its discretion, to examine into the claim for damages and in its discretion to make an appropriation for the payment thereof. Ho action was' taken by the said board. The relator’s intestate began two separate actions against the city. The first a common-law action for damages in which he recovered a judgment, which was reversed. (Sauer v. Mayor, 44 App. Div. 305.) The second an equity action in which he was defeated. (Sauer v. City of New York, 90 App. Div. 36; 180 N. Y. 27; 206 U. S. 536.)
In the case of Sauer v. City of New York (180 N. Y. 27) the court held that the plaintiff could not recover for the impair[154] ment of his easement of light, air and access, upon the theory of the elevated railroad cases. It intimated that he might have a remedy under existing statutes. The court said (p. 30): “ The fee of the street having been acquired according to the provisions of the statute, we must assume that full compensation was made to the owners of the lands through which the streets and avenues were laid out, and that thereafter the owners of lands abutting thereon hold their titles subject to all of the legitimate and proper uses to which the streets and public highways may be devoted. As such owners they are subject to the right of the public to grade and improve the streets, and they are presumed to have been compensated for any future improvement or change in the surface or grade rendered necessary for the convenience of public travel, especially in cities where the growth of population increases the use of the highways.”
The court thus justified the appropriation of the plaintiff’s easement on the theory applicable to change of grade. This clearly appears from the opinion of the United States Supreme Court (206 U. S. 536, 544): “The State courts have uniformly held that the erection over a street of an elevated viaduct, intended for general public travel and not devoted to the exclusive use of a private transportation corporation, is a legitimate street improvement equivalent to a change of grade; and that, as in the case of a change of grade, an owner of land abutting on the street is not entitled to damages for the impairment of access to his land and the lessening of the circulation of light and aii* over it.” And is emphasized by this court, Mr. Justice Scott writing: “In Sauer v. City of New York (90 App. Div. 36; 180 N. Y. 27; 206 U. S. 536) the plaintiff claimed consequential damages to his property abutting upon One Hundred and Fifty-fifth street, because of the erection in the street of an elevated viaduct supported upon high iron columns, leaving the street at its original grade in front of the plaintiff’s property undisturbed, except for the presence of the columns. This was held in every court to constitute a change of grade ” (People ex rel. City of New York v. Hennessy, 157 App. Div. 786, 787; affd., 210 N. Y. 617), and the Court of Appeals have also so stated: “ It was held in that case [Sauer] * * * that it was a change in the grade of the streets within the meaning of the [155] principle just referred to.” (Smith v. Boston & Albany R. R. Co., 181 N. Y. 132, 137.) In the Hennessy case, People ex rel. City of New York v. Sandrock Realty Co. (149 App. Div. 656; affd., 207 N. Y. 771), relied upon by the respondents, is distinguished, and it is pointed out that the statute there under consideration limited the right to recover damages for the change in grade to certain of the property affected, which did not include the respondent’s property “ on the theory apparently that, in consequence of the widening of the avenue above that street, no injury would be done to the street easements of abutting property” (p. 788). In my opinion that case should be limited as an interpretation of the particular statute then under consideration and not as declaring a general principle.
It is well- settled that there can be no damages recovered by an abutting property owner because of a change of grade unless a right thereto is given by statute.
At the time the change of grade was made in this case there existed a statute that required the board of assessors to estimate the loss and damage which each owner -will sustain by reason of such change and to make a just and equitable award of the amount of such loss or damage. (Consol. Act [Laws of 1882, chap. 410], § 873.) In this statute there was no limitation as to time within which the board should act. Section 951 of the Greater Hew York charter (Laws of 1897, chap.- 378 [Laws of 1901, chap. 466], as amd. by Laws of 1912, chap. 483; Laws of 1915, chap. 537, and Laws of 1916, chap. 516) provides that all cases where a change of grade has been made prior to the taking effect of that act shall as to the liability to make compensation for damages caused by such change “ be governed by the laws in force at the time such change of grade was completed and accepted by the city authorities.” The method of assessing such damages is prescribed in said section and a limitation within which to file claims was established. Within the time thus limited the relator filed her claim. The board of assessors have dismissed the claim for lack of jurisdiction. The claim comes within the statute and the board of assessors have power to determine the damage.
In order to defeat Sauer’s claim for damages on the theory of the elevated railroad cases that his easement of light, air [156] and access had been impaired, the city took the position that there ■ was a change of grade. Now to defeat a claim for damages for change of grade they argue that there has been no change of grade.
The courts adopted the city’s first theory, and it should not be allowed to change its position now.
The writ should be sustained, the determination of the board of assessors annulled, and the relator’s claim remitted to the board with a direction to hear and determine the same upon the merits, with fifty dollars costs and disbursements.
Scott and Davis, JJ., concurred; Clarke, P. J., and Smith, J., dissented.