The defendants in this action severally demurred to the complaint on the ground that it did not state facts *Page 135 sufficient to constitute a cause of action. The demurrers of the two railroads, defendants, were sustained at the Special Term, but the demurrer interposed by the town of Kinderhook was overruled. The plaintiff took no appeal from the decision of the Special Term sustaining the demurrers of the two railroads, and, therefore, these two defendants have, for all practical purposes, dropped out of the case. The defendant, the Town of Kinderhook, did appeal from the decision of the Special Term overruling its demurrer and on appeal the decision was reversed and the plaintiff comes here.
In this situation it is obvious that the only question presented by the appeal is, whether the complaint on its face states a good cause of action against the town of Kinderhook for the damages alleged to have been sustained by the plaintiff, resulting from the change of grade in the highway in front of his property. There is no doubt that the allegations of the plaintiff are sufficient to show that the plaintiff's property has been damaged by the changes made in the highway. The only question is whether the plaintiff states a case of liability for such damages on the part of the town. It is, therefore, important to get a clear view of the facts stated in the complaint as the ground of the liability of the town to the plaintiff for his damages. The averments of the complaint on that point are substantially as follows:
(1) That prior to the first day of January, 1903, an order was granted by the railroad commissioners of the state of New York authorizing, empowering and directing the defendants to purchase land described in such order and directing such defendants to make an underground crossing under the Boston and Albany railroad, which is leased and managed by the defendant, the New York Central and Hudson River Railroad Company, at the point where the Boston and Albany railroad crosses Chatham street, Niverville, town of Kinderhook aforesaid.
(2) That such order was affirmed by the Court of Appeals prior to January, 1903.
(3) That the proceeding taken as aforesaid was commenced *Page 136 by the defendants, railroad companies, and it was defended by the defendant the Town of Kinderhook.
It is nowhere alleged that the order above described directed the defendants to purchase any lands of the plaintiff, and it is nowhere alleged that they took any such lands outside of the limits of the highway. There is a general allegation in the complaint charging the defendants with having destroyed the highway in front of the plaintiff's premises, but that is obviously not a fact, but a conclusion. All it means or can mean is that, in the process of changing the crossing to an underground crossing, the highway in front of the plaintiff's premises was depressed below the original level to the extent of ten feet. Whether a highway has been destroyed by changes in the surface, either by elevating or depressing the road as it originally existed, is, at best, only a conclusion from the actual facts. There certainly were changes made in the highway, and when such changes are stated in detail the pleader does not strengthen his cause of action by adding to the facts the conclusions of his own mind that the highway was destroyed.
It is quite obvious that there must be some flaw in the reasoning process that would make the town of Kinderhook liable to the plaintiff in damages for the changes made in the highway which the town never wanted, never asked for, and which it opposed and resisted to the end, which came when this court affirmed the order directing the overhead crossing of the railroad to be changed to an underground crossing. Before we can accept the proposition that the town is liable for damages, under such circumstances, it should be made so clear upon principles of law, or natural justice, as to be irresistible.
It is settled law in this state that the owner of property abutting upon a highway which is graded or changed by the public authorities has no right of action against the town or municipality unless such right is given by some express statute. At common law there is no such liability. It is unnecessary to cite authorities to support such a plain proposition. No one can doubt that such is the law of this state. It is *Page 137 quite sufficient to refer to one case just decided by this court (Sauer v. City of New York, 180 N.Y. 27). It was held in that case that where the original street was elevated upon columns fifty feet above the original surface that it was a change in the grade of the streets within the meaning of the principle just referred to. In that case the property owners upon the line of the street, as originally laid out and used for many years, suffered damages since the highway was elevated fifty feet above the original surface, and yet in that case we held that they could not recover and that the damage concededly sustained wasdamnum absque injuria. Now, if that is so in a case where the road is elevated fifty feet, why does not the same principle apply when it is depressed ten feet? In the case just cited the law, as it exists in this state, was examined and restated, and I am utterly unable to see what distinction there can be in principle between that case and the one at bar.
The case of Reining v. N.Y., L. W. Ry. Co. (128 N.Y. 157) is cited as an authority in favor of the plaintiff's contention that the town of Kinderhook is liable for the plaintiff's damages. That case is often cited in cases of this character, and frequently misinterpreted and misunderstood. It was also cited and relied upon in the Sauer case, but just how it can be held to apply in a case of this kind it is difficult to perceive. In the first place the action was not against the municipality at all but against a railroad that sought to shield itself from liability under cover of municipal action, and what was decided in the case was that a municipality had no power to change the grade of a street for the benefit of a railroad; that is to say, for the benefit of a private corporation. It had the undoubted right to make the change for the benefit of the public but not for any other purpose, and having made the change in order to accommodate a railroad the railroad was liable for damages to the abutting property owners. The language of Judge ANDREWS, in giving the opinion of the court in that case, points out very clearly the principle upon which the case was decided: "We are not called upon to say whether there is any limit to the exercise of municipal authority or that *Page 138 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 the public convenience and the purposes of the street as a highway. But we think it cannot, under the guise of exercising this 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. We have held that the authority conferred by the General Railroad Law upon railroad companies to cross highways in the construction of their lines, authorizes their construction on, over or below the grade of the highway crossed, and that incidental changes of the grade of the street rendered necessary to accommodate railroad crossings, give no right of action to abutting owners who may sustain injury. * * * The conclusion we have reached, that the action of the city in granting permission to the defendant to construct an embankment in Water street, was not a change of grade in the street within the charter provisions, disposes of this question. The charter provision was intended to afford a remedy for damages from changes of grade where none existed before, and to cases to which it applies, the remedy is necessarily exclusive."
If the town of Kinderhook had permitted the railroads to make the changes, which the plaintiff complains of, for their own benefit and accommodation and not for the benefit of the public, much reasoning could be found in the Reining case to sustain the plaintiff's contention; but since the town of Kinderhook did not authorize the things to be done which the plaintiff complains of, but, on the contrary, resisted it to the end, it is difficult to see how the Reining case can be wrested from the true theory upon which it was decided to create a liability against the town. That all the things stated in the complaint causing the injuries to the plaintiff's property were merely acts in the process of changing the grade of the highway is beyond all question. Everything that was done *Page 139 of which the plaintiff complains was either permitted or commanded by statute. The law under which the change was made is a law authorizing or requiring changes of grade, and the acts complained of are acts required or permitted by the law under which the changes were made, and to say that it is not a change of grade at all, but something else, is to assert that what was done was outside of the statute and not within its scope and purpose.
Finally, it is said that section sixty-three of the Railroad Law imposes a liability upon the town for the plaintiff's damages. The language of that statute is not very clear to me. It does permit, under certain conditions, the purchase or acquiring of lands, easements or rights necessary for the purpose prescribed in the statute, since it might happen that in order to make the change more land might be required either to widen or to straighten the street. It seems that the railroad commissioners thought that something of that kind was necessary, since the complaint states that their order directed the purchase of lands. Whatever that section means it cannot help the plaintiff to overcome the demurrer in this case. If this section of the statute does create any new rights in the plaintiff, or declare any new liability on the part of the town it is sufficient to say that the remedy of the plaintiff is not in this action against the town. Whether there is any other remedy to compel the defendants to provide, in some way, for the payment of his damages is a question not here before us, and I prefer to wait until it is. Certainly, it cannot be held in this case that the town must respond for the plaintiff's damages while the two railroads that instituted the proceedings and in whose behalf they were conducted shall go free. If there is any liability at all for the change in the grade of a street of which the plaintiff complains, it would seem to be a liability that should, at least, be shared by the railroads. But all that we now decide or can decide is that there are no facts stated in the complaint that create any liability of the town in question to the plaintiff for his damages. That is the only question now before us. It follows that the judgment appealed *Page 140 from should be affirmed, with costs, and the question certified answered in the negative.