I concur with Judge ANDREWS. In Judge EARL'S opinion in theOttenot case (119 N.Y. 603), in which I also agreed, the street, a portion only of the grade of which was changed by raising, was not subjected to or burdened by other uses. It remained as much as ever in other respects an ordinary street. The change of the grade was in the general public interests, and the moving cause for the change did not affect the complexion of the question in the case. The plaintiff's property in that case did not abut upon Water street, and he had no right to complain of the railroad structure or *Page 171 embankment in question. Here the object was to subserve the railroad use, and the appropriation by the defendant of this embankment is practically exclusive. The street was subjected to a new use, with consequences as direct, in the permanent deprivation of the abutting property owners' appurtenant easement, as though the railroad was operated in front of his premises upon a structure physically incapable of other uses. I think we have, in the present case, the element of an appropriation by the defendant of the street by a permanent structure and obstruction, and, hence, it must fall within the spirit, if not the letter, of our decision in the Story case.
All concur, except EARL and FINCH, JJ., dissenting.
Judgment affirmed.