[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 71 1. This court in Matter of Grade Crossing Commissioners (154 N.Y. 550), a case in which the grade of the street had been altered, but no land taken, rested the abutting landowners' right to compensation upon the section of the charter which provides for compensation for injuries to any house or lot fronting upon a street caused by altering the recorded grade thereof. The property here does not front upon any street whose grade has been changed. Apart from providing for compensation for land taken for the grade crossing improvements in the city of Buffalo, section 12 of the Grade Crossing Act 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 *Page 74 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 lands proposed to be taken or which may be injured."
This contemplates that by closing or discontinuing a street, or by changing its grade, property not taken may be injured, for which the owners or persons interested therein are lawfully entitled to compensation. This is not saying that whenever property is consequentially injured thereby the owner shall be lawfully entitled to compensation. It refers to existing grounds for lawful compensation and adds this remedy. We do not say that in no case does it enlarge the grounds and give validity to claims which otherwise would have none. It probably does include a case where part of a lot is taken and a part left if the latter is thereby injured; the part taken may have a value not only as to itself, but as giving and supporting a value in what is left, and thus the compensation to which the owner is lawfully entitled cannot be fully measured without considering both parts. (6 App. Div. 327. )
It is possible that there may be other cases where the injury is as direct and destructive of the proper uses and value of the lot as if it were actually invaded, and thus the improvement in effect may become a continual trespass. We leave this question undecided as we left it in Matter of Grade CrossingCommissioners (154 N.Y. 551).
We are clear that the act gives to these appellants no lawful title to compensation for injuries to their lots upon Exchange street, resulting from raising the grades of Smith and Seneca streets. Their lots do not abut upon either street; no direct injury has been done, and if any injury has resulted it is that indirect injury which sometimes follows when a lawful improvement in one place leaves property in another place outside of its benefits, and less desirable. There can be no *Page 75 lawful title to compensation for such injuries. The satisfactory opinion of the Appellate Division (46 App. Div. 473) makes further discussion of this point unnecessary.
2. The remaining claim for compensation is because of the fence which closes the passage across the Erie railroad tracks on the surface of Exchange street beneath the bridge forming part of the viaduct on Smith street, thus closing Exchange street at the viaduct. This claim is not explicitly set forth in the petition, but this fencing was part of the plan adopted, and as the grade crossing commissioners, instead of the lot owners, make the petition, it should not be narrowly construed against the latter. The Special Term considered the claim, and properly rejected it. To leave this passage open would expose travelers to collision with the engines and cars upon that railroad. Its close causes them, if they wish to continue their course on Exchange street, to go to the right or left around the viaduct. Access to the appellants' lots on Exchange street is not interfered with from any direction north of the viaduct; from that part of Exchange street south of the viaduct, it must be obtained by a longer route which, at the same time, is a safer one. This deprives the appellants of no vested right and causes them no injury for which they are lawfully entitled to compensation. (Coster v. Mayor,etc., of Albany, 43 N.Y. 399, 414; Kings Co. Fire Ins. Co. v.Stevens, 101 N.Y. 417; Egerer v. N.Y.C. H.R.R.R. Co.,130 N.Y. 108.)
3. The decision of the grade crossing commissioners, that the property described in their petition "may be injured thereby, for which the owners or persons interested therein are lawfully entitled to compensation," justifies their presentation of the petition by which this proceeding is instituted, and its allegation therein, like a material allegation in a complaint, tenders an issue, in behalf of the landowners, not upon the fact that the commissioners have, ex parte, so decided, but upon the truth of their ex parte decision.
4. Section 12 of the statute provides that "any person named therein as an owner of the lands or as interested therein may *Page 76 file an answer denying any material allegation of the petition or may demur thereto." The appellants urge that the railroad companies, respondents herein, although parties to the proceeding, because not expressly enabled by the act itself to answer or demur, have no right to do so. The city of Buffalo is also a party, and, pursuant to the act, the city and the railroad companies had, before this proceeding was instituted, entered into contracts whereby substantial parts of the cost and expense of the improvement were assumed by the railroad companies. It is plain that the railroad companies will be exposed to improper charges unless in every stage of the proceeding they have full right to every proper defense against such charges. Their right to answer, demur and defend is incident to their interest, without which their day in court would be a barren one.
5. By their answers the railroad companies accepted the issue tendered, and in substance alleged that these appellants were not "lawfully entitled to compensation" on account of any of the facts alleged, and the Special Term, upon finding the facts, so held, and dismissed the proceeding. If the Special Term was right, then the appellants are not aggrieved. The duty of the court was to appoint commissioners to ascertain the just compensation to be made to the appellants, if they were lawfully entitled to any (Matter of Grade Crossing Commissioners,154 N.Y. 561), but not otherwise. No doubt the court could have appointed commissioners to ascertain the compensation to which the plaintiffs were lawfully entitled, and as they could rightfully award no other, it would be incident to their power to ascertain in the first instance, subject to correction by the court, whether the appellants were lawfully entitled to any. But the court could determine this preliminary question itself. Its jurisdiction is ample, and the act permits the appropriate procedure.
The order should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN and VANN, JJ., concur.
Order affirmed. *Page 77