Although there is a divergence of opinion among the members of the court as to some of the legal questions involved in this case, yet all agree that the statute (L. 1892, ch. 339) under which the acts complained of were performed is valid, and that the legislature did not transcend its powers in enacting it. It must also be admitted that all the acts of the defendants for which the plaintiff claims they are liable were performed under and in compliance with the direct and express mandate of that statute. That there was no encroachment upon or actual interference with the plaintiff's premises, and that the improvement was made for the benefit of the public and in a proper manner, are likewise practically conceded. Hence, the broad question presented is whether, in the absence of any statute providing for compensation, the defendants are liable for remote or consequential damages in having performed only such acts as were required by the express provisions of the statute upon works of a public nature, where there was neither negligence nor want of skill and no direct invasion of any private property of the plaintiff. We think not. In every civilized community controlled by governmental or municipal laws or regulations, there are many cases where the individual must be subjected to remote or consequential damages or loss to which he must submit without other compensation than the benefit he derives from the social compact. It is well settled by many decisions of this court that acts which are authorized by an express enactment of the legislature and performed in good faith upon a work of a public character, do not render the persons performing them liable for consequential damages unless there is an absence of due care or skill in the execution of the work. In other words, an act done under express authority of law for a public purpose, if done in a proper manner, and the property *Page 283 of the individual is not taken or encroached upon, will not subject the party doing it to an action for its consequences whatever they may be, unless the law itself provides compensation for injuries of that character. This is the rule where public works for the general welfare are constructed or operated.
Moreover, it seems to us that the principles of law relating to the change of the grade of streets, when lawfully made, are applicable in this case. Here the defendants possessed the right to maintain their railroad and run their trains along and over the street. With their rights, as they then existed, they were content. The sovereign power of the state, however, interfered for a public purpose by a law which expressly and specifically required the grade upon which the railroad was run on this street to be changed, and caused to be erected a steel viaduct upon which the defendants were required to run their trains, so that every act of the defendants of which the plaintiff complains was required by express provision of law. Under these circumstances, it seems quite clear to us that the defendants, as they have not encroached upon the land of the plaintiff or in any way interfered with it, are not liable for any consequential damages the plaintiff may have sustained by reason of the defendants having obeyed the mandate of the statute. These views find support in the following authorities: Lansing v. Smith (8 Cow. 146); Radcliff's Executors v. Mayor, etc., of Brooklyn (4 N.Y. 195); Wynehamer v. People (13 id. 378, 401); Davis v. Mayor, etc., of N.Y. (14 id. 506, 522); Bellinger v.N.Y.C.R.R. (23 id. 42); Selden v. D. H.C. Co. (29 id. 634, 642); Coster v. The Mayor, etc., of Albany (43 id. 399, 415); Brooklyn Park Comrs. v. Armstrong (45 id. 234, 245);Kellinger v. 42nd St. G.S.F.R.R. Co. (50 id. 206); Losee v. Buchanan (51 id. 476, 480); St. Peter v. Denison (58 id. 416); Clemence v. City of Auburn (66 id. 334, 339); Moore v. City of Albany (98 id. 396, 407); Uline v. N.Y.C. H.R.R.R. Co. (101 id. 98, 107); Conklin v. N.Y., O. W. Ry.Co. (102 id. 107); Cogswell v. N.Y., N.H. H.R.R. Co. (103 id. 10); *Page 284 Heiser v. Mayor, etc., of N.Y. (104 id. 68, 72); Bohan v.P.J.G.L. Co. (122 id. 18, 26); Atwater v. Trustees Vil ofCanandaigua (124 id. 602, 608); Reining v. N.Y., L. W. Ry.Co. (128 id. 157); Egerer v. N.Y.C. H.R.R. Co. (130 id. 108); Benner v. A.D. Co. (134 id. 156); H.R.T. Co. v. W.T. Ry. Co. (135 id. 393, 411); Rauenstein v. N.Y., L. W. Ry.Co. (136 id. 528); Hill v. Mayor, etc., of N.Y. (139 id. 495, 501); Folmsbee v. City of Amsterdam (142 id. 118, 122);Talbot v. N.Y. H.R.R. Co. (151 id. 155); Sullivan v.Dunham (161 id. 290, 298); Huffmire v City of Brooklyn (162 id. 584, 589); Uppington v. City of N.Y. (165 id. 222, 228).
While in some of the cases cited the question here is not involved or decided, still, even in those cases the rule suggested has been recognized and admitted to be the existing law of this state.
Aside from the case of Lewis v. N.Y. H.R.R. Co. (162 N.Y. 202) the only authorities upon which reliance is placed, to sustain a contrary doctrine, are the elevated railroad cases. While those cases have created a liability theretofore unknown, which we think should not be extended, still, it seems to us, they are not only clearly distinguishable from a case like this, but should be distinguished on the merits. In those cases, if correctly understood, the only authority the elevated railroad company had to appropriate the street was the consent of the legislature and the municipal authorities. There, there was no law prescribing what they should do or that required them to do it. Here, we have a valid statute which expressly and specifically provides what shall be done as to the change of the grade in this street or the erection of the viaduct, provides the manner in which it shall be done, and appoints, or provides for the appointment of, commissioners to carry the statute into effect. It then directs that upon the completion of such viaduct, the defendants shall run their trains over it. Thus in one case we have a mere consent or permission by the public authorities, while in the other we have an express and mandatory statute requiring the *Page 285 defendants to do precisely what they did, and of which the plaintiff now complains. It seems to us that this distinction requires us to apply the general principle applicable to such a case and not the special law that has been created by the decisions in the elevated railroad cases.
While I agree generally with the views expressed by Judge O'BRIEN, I still think that the decision about to be made can be said to be in conflict with the Lewis case, and to such extent as it is, the Lewis case should be regarded as limited.