I concur in the result and in the opinion of VANN, J., save in these respects: I think the right of abutters, not owning the fee of the street to lateral support, as owners of land within the cities of New York and Brooklyn, may be safely rested upon the statute of 1855 (chapter 6), which enacts that whenever excavations on a lot or piece of land in those cities is intended to be carried more than ten feet below the curb, the person causing such excavation to be made must at his own expense preserve the walls on adjoining land from injury and support the same by a proper foundation so that they shall remain as stable as before such excavations were made. On the faith of this statute there has followed the improvement of those cities, by the erection of buildings of a size and at a cost not then dreamed of. Relying on the protection afforded by the law, investments have been made aggregating hundreds of millions of dollars. As against the owners of buildings erected on the faith of the statute, I do not think it could be repealed so as to impair the rights acquired thereunder. However, it has not been repealed, and the statute should be construed liberally to afford the protection it was intended to grant. *Page 112 The statute would not secure an abutting owner from injury caused in the change of a grade of a street (Radcliff's Exrs. v.Mayor, etc., of Brooklyn, 4 N.Y. 195), though for such injury he is now entitled to be indemnified by other statutes. Nor would the owners be entitled to damages resulting in the proper construction of what are strictly street improvements, such as the construction of sewers, water pipes, etc. (Uppington v.City of New York, 165 N.Y. 222.) But as held over forty years ago (Craig v. Rochester City B.R.R. Co., 39 N.Y. 404) and reiterated seven years ago (Peck v. Schenectady Ry. Co.,170 N.Y. 298) a street railroad is not a street use. It is no necessary part of the definition of excavation that it should be made downwards from the surface. It is equally an excavation if made by a tunnel. If the city sought to build a court house or a police station it would have to comply with the requirements of this statute. Equally so when it seeks to build a railroad. The obligation of the statute is absolute and unqualified. The person causing the excavation to be made must see to the protection of the adjacent buildings. If he causes it to be done by a contractor he must see that the contractor complies with the obligation that is primarily his. Whenever, therefore, this obligation is violated a cause of action arises, and the abutter is entitled to the damages occasioned by such violation. I do not know that there is any objection to their being determined in a condemnation proceeding where both parties consent and the damage has actually occurred, but that seems hardly the the most appropriate proceeding. The abutter's right of support is violated only when it appears that he has been injured in that respect, and he must be paid when that injury appears. The extent of the injury should not be a matter of speculation in advance but of actuality.
As to the cases of Abbott and Mynderse, who were the owners of the fee of the street, they fall within the decision of SouthBuffalo Railway Company v. Kirkover (176 N.Y. 301), in which it was held that where land is acquired by a railroad company by condemnation the owner is entitled to *Page 113 recover not only the value of the premises taken, but also the damages resulting to the residue, including those which will be sustained by reason of the use to which the portion taken is put. I do not see that Matter of City of New York (Decatur Street) (196 N.Y. 286) has any bearing on the question before us. There the owner of the fee of the street had parted with the land on each side of the street, and, in such case, I agree that the fee is of little or no value. Probably in the cases now before the court the fee of the street, if considered solely by itself, is of no greater value, but in connection with the abutting lands it is of this advantage to the owner, that is, it unquestionably entitles him, under the case cited, to compensation for the injury occasioned to that land by the construction of the appellant's railroad.
HAIGHT, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur with VANN, J.; CULLEN, Ch. J., concurs in result, in memorandum.
Ordered accordingly.