The question certified to this court is, "Does the complaint of the plaintiff state a cause of action against the defendant, The Town of Kinderhook?" The plaintiff, in substance, alleges that the railroad commissioners of the state of New York had made an order "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 New York Central and Hudson River Railroad Company where the Boston and Albany Railroad crosses Chatham Street, Niverville, Town of Kinderhook aforesaid, and such order required the destruction and removal of the highway in front of plaintiff's manufacturing plant at Niverville aforesaid, upon the payment by the defendants of the value therefor." The complaint further alleges that the plaintiff is the owner, as trustee, of a tract of land upon which there is a large brick manufactory of the value of nine thousand dollars, in the town of Kinderhook, situated upon Chatham street, contiguous to the Boston and Albany railroad; that the defendants removed and destroyed such highway in front of the plaintiff's manufactory, as aforesaid, and have dug out and removed the highway to the depth of ten feet below the plaintiff's buildings, thus destroying his means of ingress and egress to and from such street, and that he has suffered damages by reason of such acts in the sum of five thousand dollars, for which he demands judgment.
The demurrer interposed by the railroad companies was sustained by the trial court, and no appeal has been taken therefrom, so that the only question brought up for review in this court is as to whether the complaint states a cause of action against the town of Kinderhook. It is apparent from the allegations of the complaint that the highway in front of the plaintiff's premises has been lowered a distance of about ten feet, so as to pass under the railroad crossing at that point, *Page 141 and that the change made in the highway operated to deprive the plaintiff of his easement of access thereto. Assuming this to be so, the question arises as to whether he can recover damages therefor in this action. The right of an abutting owner to ingress and egress to and from his premises to the highway is a continuing easement running with the land, which may be acquired for a public use when necessary. At common law the damages to the easements of an abutting owner, made by a change of grade in a public highway for the convenience and safety of the public traveling thereon, in the absence of legislative enactment providing a remedy, are damnum absque injuria and no right of action exists therefor. But if such remedy is given by statute where none existed at common law, it becomes exclusive and must be followed by those seeking relief. (Brewster v. Rogers Co.,169 N.Y. 73, 80; Sauer v. City of New York, 180 N.Y. 27, and authorities there cited.) It, therefore, becomes important to determine what, if any, remedy has been given by statute.
Under the Railroad Law, being chapter 565 of the Laws of 1890, as amended from time to time, we have an elaborate system provided for the crossing of highways by railroads. Section sixty relates to steam railroads thereafter constructed across highways. Section sixty-one provides for the laying out of new streets or highways over existing railroads, and section sixty-two provides that, upon the application of the mayor and common council of a city, the president and trustees of a village, or the town board of a town within which a highway crosses a steam railroad at grade, the board of railroad commissioners may, upon the notice prescribed by the statute to all the parties interested, including the owners of lands adjoining such crossing, change the grade, in case the public safety so requires, so as to provide an under or an over crossing, or the discontinuance of a highway and for the providing of a new highway crossing the railroad at another place and determine specifically the manner in which the same shall be made. By section sixty-five it is provided that where a crossing is made under section sixty of the act by a new *Page 142 railroad it shall pay all the expenses thereof; where it is made under section sixty-one, the railroad company shall pay one-half of the expenses and the municipality the other half, and where the crossing is changed under section sixty-two, the railroad company is required to pay one-half, the municipality one-quarter and the state the other quarter of the expenses. Where the crossing is changed under section sixty-two, all of the work shall be done by the railroad corporation subject to the supervision and approval of the board of railroad commissioners, and the railroad company is required to pay the expenses of such work in the first instance and where lands, easements or rights are necessary to be acquired in carrying out such work the amount required to be paid therefor shall be primarily paid by the municipal corporation, but no claim for damages to property on account of the change or abolishment of any crossing under the provisions of the act shall be allowed unless notice of such claim is filed with the board of railroad commissioners within six months after the completion of the work necessary for such change. After the completion of the improvement and the work is approved by the railroad commissioners an accounting is required to be had as to the amount of costs incurred in the construction of the improvement and in the acquiring of the necessary lands, easements and rights therefor and the expenses divided between the railroad company, the municipality and the state in the proportions specified, the railroad commissioners drawing upon the treasurer of the state for the amount that the state is required to pay. Section sixty-six gives authority to the railroad commissioner to institute proceedings on their own motion for a change of crossing when, in their opinion, the public safety and interests so require. And section sixty-seven requires the railroad corporations and the municipality or the person or persons, to whom the decision of the railroad commissioners is directed, to comply with the decision and in case of their failure they may be compelled by the attorney-general so to do. The Supreme Court is given the power in all cases to compel compliance with the decision by mandamus. *Page 143
Section sixty-three provides as follows: "The municipal corporation in which the highway crossing is located, may, with the approval of the railroad company, acquire by purchase any lands, rights or easements necessary or required for the purpose of carrying out the provisions of sections sixty, sixty-one and sixty-two of this act, but if unable to do so shall acquire such lands, rights or easements by condemnation, either under the Condemnation Law, or under the provisions of the charter of such municipal corporation. The railroad company shall have notice of any such proceedings and the right to be heard therein."
We thus have the general scheme of the statute disclosed. The railroad commissioners are given the power to do away with grade crossings when the safety of the public so requires, and to specify the manner in which the crossing shall be constructed, but in doing this the owners of lands adjoining the crossing must have notice and an opportunity to be heard and their rights considered; but in any claim that they may make for damages notice thereof must be filed with the board of railroad commissioner within the time specified, to which attention has been called. The provisions of section sixty-three, which we have quoted, provide for the acquiring by purchase of any lands, rights or easements necessary or required for the purpose of carrying out the contemplated improvement. If the improvement is of such a character as to necessitate the destruction of the easements of abutting owners of access it is apparently one of the rights contemplated by the statute, for which the abutting owners have been given a hearing. The municipal corporation can acquire these rights or easements by agreement with the parties only upon the consent of the railroad company. The railroad company, being required to pay one-half of the expenses of acquiring such rights or easements, has the right to become a party to such agreement, and if such company does not consent thereto the agreement cannot be made. But if the parties are unable to agree, then the provision of the statute is that such rights or easements shall be acquired by condemnation, *Page 144 either under the Condemnation Law or under the provisions of the charter of the municipal corporation; but in that case the railroad company is required to have notice of such proceedings, to the end that the company may appear and be heard upon the question of damages. We, therefore, conclude that under a fair and reasonable construction of the statute the legislature contemplated the acquiring of easements which would necessarily be destroyed by the construction of the improvement; but, as will be seen, they must be acquired in the manner pointed out by the statute, and that is by the agreement of the parties, or, in case they are unable to agree, by proceedings to condemn either under the Condemnation Law or under the provisions of the charter of the municipality. In that way the rights of the railroad company, of the town and the state can be protected, as well as that of abutting owners who have their easements impaired. (Matter ofTorge v. Vil. of Salamanca, 176 N.Y. 324.) When the easement is acquired by agreement or by condemnation it is acquired for all time, or so long as the improvement in the highway remains unchanged. This cannot be accomplished under the complaint in this action. The remedy is one provided by statute, which did not exist at common law, and, therefore, under the authorities becomes exclusive. It may be claimed that the right of instituting the condemnation proceedings rests in the town, and that the town in this case refuses to institute such proceedings; if so, the plaintiff has his remedy through the writ of mandamus to compel the town board to take the necessary steps to acquire any easements that have been taken from him. Our conclusion, therefore, is that the complaint does not state facts constituting a cause of action, and that the judgment of the Appellate Division should be affirmed, with costs, and the question certified answered in the negative.