In this case no land was taken for the improvement and no overhead structure was erected, but an excavation was made across Main street in the nature of a subway, in which the tracks of the railroad were laid. The excavation was covered with steel beams, upon which a paved passageway was built for use as a street. This alteration, according to the plan adopted by the grade crossing commissioners, required the grade of Main street "to be changed over the beam tunnel, commencing at a point about one hundred and fifty feet south of the tracks" of the railroad company; "thence on a four per cent grade to the tracks at an elevation of 1.67 above" the former "grade of the street; thence to a point about fifty feet north of the tracks where it meets the old grade of the street." The improvement does away with a dangerous grade crossing and furnishes a clear roadway, with a slight change of grade in front of the respondents' property.
We think this appeal is controlled by our decision in the case argued with it affecting Michigan street. (Matter of GradeCrossing Commissioners, 154 N.Y. 550.) The main difference between the two cases lies in the extent of the *Page 564 injury, and clearly the Special Term had no power to refuse to appoint commissioners, even if it was of the opinion that the injury was slight, and the damages caused thereby apparently of little consequence. It was its duty to appoint the commissioners and thus create the tribunal authorized by law to find the extent of the injury and to award damages in accordance therewith, so that the landowner could have his day in court before his claim was extinguished by the operation of the statute. The commissioners are required by the Grade Crossing Act to hear the proofs and allegations of the parties, and to report the amount of compensation to be paid to the owners for any injury to their lands caused by making the improvement. The statute speaks of "lands injured," of lands that "may be injured" and of lands "claimed to be injured," in connection with the duty of ascertaining the compensation. When it provides for the appointment of commissioners, it mentions lands "which may be injured;" when it directs the commissioners to "view" the premises, it says, lands "claimed to be injured," but when the power of awarding damages is conferred upon the commissioners, it is limited to "the injury thereto;" that is, the injury actually done to the lands. In exercising the power of eminent domain it sometimes happens that lands not taken are injured seriously, others but slightly, and others, although near by, not at all. When a statute authorizes compensation to be made for lands not taken, but which may be injured, through a commission appointed by a court of record, and directs the commissioners to hear the parties, pass upon their claims and report the amount of compensation, and that "all claims for damages to the property claimed to be injured shall" thus "be extinguished," the power to award compensation carries with it the power to measure the injury by the rules of evidence, and to determine whether, and to what extent, the property has been injured. If no injury is shown, no compensation can be awarded, but if any injury is shown, damages must be awarded in proportion to its extent, whatever it may be. The application of the grade crossing commissioners, based on their conclusion that *Page 565 certain property "may be injured," simply sets in motion the legal machinery provided by the statute, and the commissioners appointed upon such application pass upon the fact of injury and assess the damages accordingly. There was no necessity of sending the question whether the lands were injured to one tribunal for determination, and the question as to the amount of the injury, if any, measured in money, to another, as both questions are necessarily involved in passing upon the claim for damages.
The order should be affirmed, with costs.
All concur.
Order affirmed.