I concur in the opinion of Judge HAIGHT. The right to compensation for a change of grade of a street under the charter of the city of Buffalo and under the various statutes containing similar provisions for the protection of abutting owners, is a liability created by statute. It certainly was not intended in the opinion rendered in Matter of Torge v. Village ofSalamanca (176 N.Y. 324) to assert that the various acts alluded to convey to the abutting owner any title in the soil of a street or highway, though the language used at the conclusion of the opinion may be open to misconstruction. That language was in answer to a claim that the rules of damage under the Railroad Law and under the Village Law were different, and that hence the right granted by the latter statute could not be enforced in proceedings under the former. The statement made, that "The right secured to an abutter to compensation for a change in the grade of a street is substantially the grant to him of an easement in the street to have it maintained at its existing grade, and any such easement created by the statute is in every respect analogous to those invaded in the railroad cases" (p. 331), was intended to decide only that, so far as the rule of compensation was involved, the right granted by the statute was analogous to the case of the invasion of an easement.
GRAY, WERNER, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur with HAIGHT, J., and CULLEN, Ch. J.
Orders reversed, etc. *Page 40