The action is to compel the defendants to remove an embankment constructed by them upon the entire surface of the part of a street in front of plaintiffs' lot, whereby access to the lot from the street as existing was destroyed, and to recover the damages caused by it. It was tried without a jury. The judgment entered upon the decision of the court awarded to the plaintiffs damages in the sum of $10,860, and an injunction restraining the maintenance of the embankment, to become inoperative, however, upon the payment of the sum of the damages. It was unanimously affirmed by the Appellate Division. The appellants here assert that the conclusions of law of the trial court, to the effect that the embankment was illegally and without right constructed and constituted a continuing nuisance injurious *Page 487 to the lot of the plaintiffs, did not have any support in the findings of fact and hence the judgment was illegal. I think they err.
The findings of fact, which we must accept as conclusive in view of the unanimous affirmance (Hay v. Knauth, 169 N.Y. 298), are in effect, so far as material: The street in question was Thomson avenue in the borough of Queens of the city of New York. Title to it was in the city. Prior to the construction of the embankment, the right of way of the defendants, railroad corporations, was one hundred feet in width, and the tracks thereon intersected it at grade. The distance upon the street between the right of way and the lot of the plaintiffs was one hundred and sixty-two feet. In 1907 the railroad corporations desired to institute a freight yard and terminus which in its length of two miles should intersect Thomson avenue and in its width of eight hundred feet should include that distance of Thomson avenue, or seven hundred feet in addition to the part occupied by its right of way and contiguous to the side of the right of way further from plaintiffs' lot. The project involved parts of many streets other than Thomson avenue, but further reference need not be made to them. In aid of the fulfillment of the desire, the railroad corporations applied to the city of New York to assist them in and to consent to the establishment of the terminus and submitted to the board of estimate and apportionment of the city their application that the board under section 442 of the charter of the city, hereinafter referred to, discontinue Thomson avenue through the distance of the eight hundred feet and in lieu thereof provide for carrying it, on its existing line, over the freight yard or terminus by means of a bridge or viaduct, in order that they might institute the freight yard and terminus. The map or plan of the railroad companies portraying the proposed terminus and desired changes in streets was submitted with the application. The board granted the application coincidently with and *Page 488 in view of the execution of an agreement between the railroad corporations and the city. The agreement recites the desire of the companies to institute the terminus and freight yard, the application of the railroad companies to the board of estimate and apportionment to act as therein requested, "in order that they may construct, maintain and operate the said terminus, terminal facilities and freight yard," the granting of the application to be effective when the agreement is executed, the intention of the railroad corporations to acquire the titles by purchase or condemnation to all the lands fronting upon the parts of the streets to be closed and thereupon to purchase from the city all the lands of the parts of the streets discontinued and closed; and the parties agreed, among other things, that the part of Thomson avenue in question shall be discontinued and closed and sold and conveyed by the city to the railroad corporations; that the railroad companies will construct at their own expense a bridge or viaduct over the proposed freight yard and terminal development on the line of Thomson avenue as now existing, and indemnify the city against and assume all liability accruing because of the closing or changing of the grades of streets, or the construction of the viaducts, of which that on the line of Thomson avenue was one, and will cede to the city by proper instruments in writing perpetual easements for the right to maintain and control the viaducts for the purpose of police regulation, and other control contemplated by the city ordinances for the care of streets, excepting and reserving, however, to the said companies the right to construct and maintain such connections between them and the property of the companies as shall not interfere with the use of them for street purposes. The performance of this agreement, in so far as it relates to the lot of the plaintiffs, resulted in the construction of a viaduct, on the line of Thomson avenue, over the eight hundred feet of freight and terminal yard of the height of thirty-two *Page 489 feet above the displaced surface of the avenue at the exterior line of the right of way nearer to plaintiffs' lot, thence rising to the height of forty-six feet, and of a solidly built approach to the viaduct, occupying the entire width of the avenue in front of the lot, and being along the seventy-five feet frontage thereof an average of seventeen and three-tenths feet higher than the surface destroyed by it.
Certain findings of fact are:
"Twenty-sixth. That the elevation of the grade of Thomson Avenue in front of plaintiffs' property, and the construction of the wall and embankment in front thereof, as hereinbefore found, were not made for street purposes or uses, but said elevation of grade and said wall and embankment were made necessary by reason of the construction of the viaduct over said terminus and freight yard.
"Twenty-seventh. That the change of grade of Thomson Avenue in front of plaintiffs' property was made solely for the purpose of benefiting the defendants' railroad companies, and their predecessors, and said change of grade was not made for the benefit of the public, and the use of said Thomson Avenue for street purposes by the public did not require any change of the grade of said Thomson Avenue in front of plaintiffs' lands."
It is further found as a fact that the construction of the viaduct and the erection of the wall in front of plaintiffs' lands were permitted by the defendant city to be and were done to promote and further the railroad enterprises and to provide terminal railroad facilities for the convenience and benefit of the railroad companies. The appellants assert that the findings thus quoted are conclusions of law. The finding that an act or a series of acts are done in order that an intended object or result shall be accomplished is a conclusion of fact. No principle of law applied to those acts compels it. It springs from the evidence declaring the acts *Page 490 and declarations of the parties and the conditions then existing, and is a secondary fact established by those primary facts. Those findings must be accepted by us as conclusive.
Section 442 of the charter of the city of New York (L. 1901, ch. 466) provides: "The board of estimate and apportionment is authorized and empowered, whenever and as often as it may deem it for the public interest so to do, to initiate a change in the map or plan of The City of New York, so as to lay out new streets, parks, bridges, tunnels and approaches to bridges and tunnels and parks, and to widen, straighten, extend, alter and close existing streets, and to change the grade of existing streets shown upon such map or plan," by proceeding as it prescribes.
The defendants had neither lawful authority nor power to discontinue and change the physical grade of Thomson avenue unless this section gave them.
While the viaduct is, probably, the property of the railroad corporations (People ex rel. Buffalo L.E.T. Co. v. TaxComrs., 209 N.Y. 502), it is not necessary to determine with certainty the rights and conditions resulting from the agreement and its performance. For the purposes of this case, it and the approaches may be deemed the grade of that part of Thomson avenue as physically changed by the board of estimate and apportionment. There is no view more favorable to the claims made by the defendants. Inasmuch as the lot of the plaintiffs was not built upon or otherwise improved, the section of the charter awarding damage for change of grade (section 951) does not apply. Under the common law of nearly all jurisdictions, damage caused to an abutter by a lawfully authorized change of the grade of a street by the municipal authorities is damnum absque injuria. The courts by manifold declarations have recognized that the law frequently causes hardship and deprivation of property, and revealed their attempts in many cases to *Page 491 escape it, yet deem it too fundamental and revered to annul. InMatter of Torge v. Village of Salamanca (176 N.Y. 324, 327) Judge CULLEN wrote for the court: "The hardship of this rule, however, was early appreciated and legislation was passed to secure abutters who improved their property on the faith of the established grade of a street from alteration of that grade without compensation." In a number of the states the constitutions, and in a greater number statutes, have abrogated or ameliorated it. There remain, however, in the application of the law, in this as in all cases involving damage from a change of street grade, the questions, was the change authorized and was it lawfully effected? The right of ingress and egress between a lot and the contiguous street is a property right, the unauthorized interference with which by a change of the grade of the street is illegal and wrongful.
The reason for the rule of the common law as stated is clear and certain. The easements or titles of the public streets and highways are held by the state for the people for the purposes of travel and traffic on the part of the public, and affording light, air and access to the property of abutting owners. (Eels v. American T. T. Co., 143 N.Y. 133; Matter of Board ofRapid Transit R.R. Comrs., 197 N.Y. 81.) The people have the right, as a governmental function, at all times to improve or grade them for highway purposes as the travel over them necessitates or prompts, and abutters are conclusively presumed to have acquired their lands subject to this right, and have been compensated for any future improvement or change of grade for the legitimate purposes of streets. (Sauer v. City of New York,180 N.Y. 27; Conklin v. N.Y., O. W. Ry. Co., 102 N.Y. 107.) The essence, however, of the rule is that the change of grade is made for legitimate street purposes. It is not a governmental function, as this court has repeatedly held, to authorize the erection in the streets of *Page 492 structures to be used for other than strictly street purposes, or to change their grades, to the injury of abutters, for the accommodation or advantage of individuals or private corporations; nor are abutters presumed to have been compensated for such uses. The public interest which may lawfully impel and guide municipal authorities in altering, under a provision like unto that of section 442 already quoted, the grades of highways or streets, whereby the rights of abutters are molested, is the interest of the traveling public. A learned and discriminating writer has expressed his conclusion in this language: "The doctrine that the rights of abutting owners are subject to the right of the public to grade and improve streets, is one which has often resulted in great hardship to individuals. This is a reason why the doctrine should be restricted so far as is consistent with sound legal principles. The doctrine is founded upon the theory that when a street is established there is taken into consideration the fact that future improvements of the street may necessitate a change in the surface and the land is supposed to be given, or compensation made, with this in view. But it is manifest that only ordinary changes of grade can be thus anticipated, that is, such changes as may be necessary to secure a uniform, even surface for the purpose of facilitating traffic on the street. Consequently the rule should not apply when the reason of it fails. Consequently the rule should not apply where the grade is changed for some ulterior purpose not connected with the improvement of the street, or when made necessary by artificial conditions such as a railroad, canal or bridge." (1 Lewis on Eminent Domain [3d ed.], § 138.)
In Reining v. N.Y., Lack. W.R. Co. (128 N.Y. 157, 166,168) the common council of the city of Buffalo granted the defendant the right to construct an embankment for its railroad upon a part of Water street which interfered with the access to the premises of the plaintiff fronting *Page 493 thereon. Judge ANDREWS, writing for the court, stated that the city of Buffalo, for the convenience and presumably upon the application of the defendant, devoted the center of Water street to what is practically the exclusive use of the defendant, leaving for the use of the plaintiffs a narrow and inconvenient roadway, separated from the center of the street by a barrier therein, and said: "We think the public cannot justly demand such a sacrifice of private interests, or justify such an appropriation of a street by a municipality in aid of a railroad enterprise. * * * It is quite probable that the general interests of Buffalo and of the larger public are promoted by this appropriation of the street, but it by no means follows that a lot owner whose property is injured should bear the loss for the public benefit;" and speaking of the plenary power given the city of Buffalo to change the grade of its street and the claim of defendant that the act under review was a change of the grade of Water street, said: "The fact that what was done did effect a change in the grade of that part of the street occupied by the embankment does not prove that what was done was in the execution of the power to alter the grade of streets conferred on the council. The primary object of this power contained in municipal charters, is to enable the municipal authorities to render astreet more safe and convenient for public travel, to afforddrainage, in short, to adapt it more perfectly for the purposesof a public way. It is claimed that the city under this power could lawfully authorize an embankment in part of the street, leaving the other part on a lower level. We are not called upon to say whether there is any limit to the exercise of municipal authority or that the city cannot in exercising the power to establish and alter the grade of streets, raise an embankment in a part of a street, if, in its judgment, this will promote thepublic convenience and the purposes of the street as a highway. But we think it cannot, under the guise of exercising this *Page 494 power, appropriate a part of a street to the exclusive, or practically to the exclusive use of a railroad company, or so as to cut off abutting owners from the use of any part of the street in the accustomed way, without making compensation for the injury sustained." The doctrine of the elevated railroad cases is that a right of property in the street belongs to the abutting owner which cannot be injured or taken away from him without compensation by the erection of obstructions not essential to the normal use and condition of the street as such. The easement of the public is the right to use and improve the street for the purposes of a street only. A street purpose is exclusively a highway purpose and any use of the street, which improves or benefits it as a highway, is a proper street use. (Matter ofRapid Transit R.R. Comrs., 197 N.Y. 81, 97.)
In Ranson v. City of Sault Ste. Marie (143 Mich. 661) a bridge was built by a private corporation, rendering services to the public, under a contract between it and the city, above the grade of the street, when for the purposes of the street only it might have been constructed at substantially the grade of the street. The approach to the bridge raised the grade in front of plaintiff's property. The city was held liable for the damage, and the court said: "The general power over streets, their grades and maintenance, and over bridges and the manner in which they shall be constructed, which is usually possessed by cities and is possessed by defendant city, must be considered with referenceto, and is limited by, the purposes and uses of public ways."
In City of Shawneetown v. Mason (82 Ill. 337) the city raised, under legislative authority, the grade of a street upon which the property of the defendants in error fronted, for the purpose of making it operative as a levee. The city had plenary power to establish and change the grades of streets, and thereunder justified its action. It was held that while a city may lower or elevate the *Page 495 grades of its streets at its pleasure, when it is done in good faith, with a view to fit them for use as streets to meet thepublic wants, without compensation to abutters, the elevation of the street was made to protect the city against inundation from the Ohio river, and was not within the power, conferred by charter, to change the grades of streets, and said: "When the street was laid out, there is nothing to show that this was one of the anticipated uses to which it was to be devoted, and it cannot, therefore, be assumed that, when lot owners purchased, they purchased with the view that this levee might be constructed where it is. It is an appropriation of the street to a new use, we concede, legitimate enough in itself, but still a use not implied from the laying out of the street, and it cannot be intended lot owners have, by anticipation, compensated themselves against loss resulting by reason of its erection, as in the case of the change of grades in streets properly." It is true that in this case the constitutional provision of the state entitling owners to compensation for property damaged as well as taken was invoked, but this does not affect the decision that raising the grade of the street for levee purposes was not a change in grade within the meaning of the charter of the city, because it was not for legitimate street purposes.
In Central of Georgia Ry. Co. v. Garrison (12 Ga. App. 369) the grade of the street in the city of Athens upon which the property of the defendants in error fronted was lowered. This was done by the plaintiff in error railway company under a contract between it and the city and as a part of a general scheme beneficial to terminal facilities of the railway company and also the city. It was held that where a railway company, with the consent of the municipal authorities, undertakes to alter the condition of streets for the purpose of benefiting itself, although the change in the grade of the street may be of benefit generally to the public, it was not a change *Page 496 of grade within the authorization of the charter of the city, and the abutter injured in the right of access may recover the damage from the city or the railway or both. Of identical effect is the decision in Walters v. City of Baltimore (120 Md. 644).
In Egerer v. N.Y.C. H.R.R.R. Co. (130 N.Y. 108) the part of a street in the city of Rochester, in front of plaintiff's premises, was in part discontinued under an act of the legislature for the purpose of enabling the defendant to elevate its tracks. There was left but a narrow space between the embankment placed therein and plaintiff's premises. It was held that neither the legislature nor the city could alter, in connection with and in furtherance of the convenience and advantages of the defendant's railroad, the street injuriously to plaintiff's right of access without compensation to her.
In Sauer v. City of New York (180 N.Y. 27, 31) a second street was constructed by the city of New York under express legislative authority over the original street, in order to connect streets upon opposite and separated heights or bluffs. The additional street rested upon iron columns placed in the original street upon which plaintiff's property fronted. We held that the second roadway was constructed, in accordance with express legislative authority, for normal street purposes, and plaintiff could not recover consequential damages, and Judge HAIGHT in his opinion said: "The rule may be different as to pecular and extraordinary changes made for some ulterior purposes other than the improvement of the street, as for instance, where the natural surface has been changed by artificial means, such as the construction of a railroad embankment or a bridge over a railroad making elevated approaches necessary."
Reference is also made to the following decisions: Bernhard v. City of Rochester (127 App. Div. 875; affirmed, 194 N.Y. 566) ; Dean v. Ann Arbor Railroad Co. (137 Mich. 459);Zehren v. Milwaukee El. Ry. L. *Page 497 Co. (99 Wis. 83); Atchison, Topeka Santa Fe R.R. Co. v.Davidson (52 Kans. 739).
Under principle and authority, the discretionary and plenary authority given by section 442 of the charter to the board of estimate and apportionment to change the grade of existing streets can be lawfully exercised, as to abutters, only in the interest and behalf of the people as travelers and users of the streets or highways as such. Of course, its exercise is not barred by the fact that advantage will incidentally result therefrom to individuals or private corporations. The easement of access appurtenant to an abutting lot is continuous, and is vested in the owner of the lot until the people deem that it to a greater or less extent is required for increasing the convenience or usefulness of the street for the traveling public. The Constitution forbids that it should be taken, under the guise of a change of grade by the authorities, for the purpose and object of creating an opportunity for, or promoting or advantaging any private undertaking or enterprise or any public one other than an improvement of the street.
In the present case the railroad companies set in motion municipal functions for their own benefit and to effectuate their private ends and designs. They desired Thomson avenue through the distance of eight hundred feet discontinued and the viaduct and approaches erected for their own and sole interest. They constructed them in their own interest and not in the interest of the public. They were not intended to be and were not made for the improvement of the avenue as a street, and the interest of the people as proprietors and users of the street did not require them. Neither the board of estimate and apportionment nor the city possessed lawful authority to permit or cause them.
The assertion of the city that the physical change of grade of Thomson avenue was made for street purposes because it did away with the grade crossing is without *Page 498 merit. It contradicts the findings of fact. It was not made for and was not limited to that purpose. It is a matter of common observation and knowledge that a highway crossing above the tracks as they existed would not have needed a structure approximating even the height of thirty-two feet or an approach approximating the height or length of that constructed — indeed it may well be presumed that it would not seriously have interfered with the right of the plaintiffs. There is no finding that it was the intention of the railroad companies to acquire land and construct additional tracks for any purpose other than to enable them to establish the freight yard and terminus as proposed in the application submitted to the board of estimate and apportionment and the city and the plan accompanying it, or that any question was before the board other than the one, shall the companies be permitted to establish the yard and the streets be changed as they requested in order that they might construct the freight yard and terminus. An unauthorized change of grade makes those who effect it responsible for the damage to an abutter who is injured in his property rights. (Folmsbee v.City of Amsterdam, 142 N.Y. 118.)
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, MILLER and CARDOZO, JJ., concur with HOGAN, J.; COLLIN, J., reads disenting opinion.
Judgment accordingly. *Page 499