Construed literally, the 1st paragraph of section 12, namely: <£i If the commissioners shall decide that it is necessary for the purpose of carrying out any plan or modification or alteration of a plan adopted” by them, that any street shall be closed or discontinued, or that the grade of any street or portion of any street or public ground shall be changed, and that any property may be injured thereby for which the owners or persons interested therein are lawfully entitled lo compensation, or that any land shall be taken incident to the -changes of the grade of any street, or to widen any street, or in the event that the commission shall undertake the work on the failure ■of the company or companies to do so, the commissioners, by their chairman, may apply to a Special Term of the Supreme Court for ■the appointment of three "commissioners to ascertain the compensation therefor to be paid to the owners of or parties interested in the land proposed to be taken or which maybe injured,” seems to make the decision of the grade commissioners “ that any property may be 'inj nred thereby, for which the owners or persons interested therein .-are lawfully entitled to compensation,” a condition precedent to the -right of the owner, a part of whose land is to be actually taken, and ■flie remainder to be injured, to be awarded any compensation for risuch injury by the commissioners of appraisal, and also a condition ■precedent to the right of the grade commissioners to apply to the Supreme Court for the appointment of commissioners to ascertain 5C the compensation therefor to be paid to the owners of or parties "interested in the land proposed to be taken, or which may be ■■injured,” and equally a condition precedent to the right of the ■commissioners of appraisal to ascertain such compensation. I think ■ike literal construction should not prevail, and thus defeat what I ■.conceive to be the true intent and meaning of the act. It will be seen that this section, by its own terms, recognizes the fact that,- in *339carrying out the grade crossing scheme authorized by the act, lands may be injured as well as taken, and that compensation should be made for such injury.
The charter of the city of Buffalo (Chap. 105, Laws 1891, § 406) provides: “ When the city shall alter the recorded grade of any street or alley the owner of any house or lot fronting thereon may, within one year thereafter, claim damages by reason of such alteration,” and the ascertainment of such damages is committed to the board of assessors.
Reading the acts together it becomes plainer that it is the statutory right of the owner of lands fronting upon the street, whose recorded grade is changed, to claim and be awarded damages for the injury done to such lands though none be taken.
Therefore, cases which deny the owner’s right to damages, in the absence of a statutory declaration of that right, do not embarrass the question of the just compensation which these appellants may be entitled to. (Folmsbee v. City of Amsterdam, 142 N. Y. 122.)
It may be remarked that this rampart of stone wall and earth, and the injury it causes to the appellants’ premises, likens the case to that of Reining v. N. Y., Lackawanna & W. R. R. Co. (128 N. Y. 157), in which the owner was permitted to recover damages of the railroad company, rather than to the cases cited by Pabeee, .P. J., in Avhich the remedy Avas denied because the simple and ordinary change of the grade of the street was in no just sense the taking of the abutting OAvner’s private property; a doctrine, it may be remarked in passing, as to which judicial opinion is not harmonious, and from Avhich legislative opinion dissents, as the act under consideration and numerous others attest. A telegraph pole may not be erected by the side of a country highway Avithout compensation to the adjoining OAvner Avhose fee extends to the center of the Avay. (Eels v. Am. Tel. & T. Co., 143 N. Y. 133.) It is not strange, therefore, that the Legislature here provided that compensation should be made for the injury to be done by this erection.
If the injured owners cannot in this proceeding obtain compensation for the injury to be done to' the remnant of their lands they cannot obtain it at all. Another provision of .section 12 of the Grade Crossing Act declares that upon payment or deposit of the amount of the award, as specified in the act, “ all claims for dam*340ages to the property claimed to be injured shall be extinguished.” It does not say damages for the property taken, and thus suggest recourse to the assessors under the charter, or to some other commission, or to an action at law¿ but it covers “ all claims for damages to the property claimed to be injured.” In respect to land injured, none of which is taken, if the grade commissioners fail to include the owner thereof in the condemnation proceedings, such owner obviously may without prejudice seek his day in court under the charter, or otherwise, but in respect to the owner made a party to the condemnation proceeding, the statute informs him that all his claims for damages to the property claimed to be injured are to be extinguished in that proceeding. The language is comprehensive and covers the claims here made by the owners and rejected by the commissioners. It should not be overlooked that this clause is another statutory recognition of the owner’s right to damages for the remnant of lands injured, though not taken.
To construe this act to mean that the right of the owner of lands injured by taking part, but not the whole, to just compensation for the injury, depends upon the grade commissioners first deciding that the property may be injured by the execution of the grade crossing scheme, and also that the' owner is lawfully entitled to compensation therefor, is to imperil -the validity of the act upon constitutional grounds. For, if the commissioners must so decide before the injured land owner can acquire his right.to compensation, then the grade commissioners can, by an adverse decision, or failing to decide at all, foreclose that right, and this too without giving the owner any opportunity to be heard in respect to it. There is no provision in the Grade Crossing Act giving to the owner any opportunity to be heard upon that question before the grade commissioners. And, if there were, its validity would be doubtful, since section 7 of. article 1 of the Constitution provides that “ when private property shall be taken for any public use the compensation to be made therefor * * * shall be ascertained by a jury or by not less than three commissioners appointed by a court of record,” not by the Legislature. If it be said that the Constitution does not apply to land not. taken, but only injured, the answer is that the statutory, right of. the owner to compensation for ingtiries is-“private property,” and'tlius within the constitutional protection.
*341We need not impute to the Legislature any intention to take from the land owner his private property without just compensation, or to deprive him of his property without due process of law, or to vest the determination of the question of fact whether Ms property has been injured, and whether he is lawfully entitled to compensation therefor, in commissioners other than those which the Constitution authorizes to determine it as incident to their jurisdiction to award just compensation, if by a reasonable construction of the act these objections can be avoided, and the act be found to harmonize with the intent of the Legislature and with the Constitution.
A careful reading of the 1st paragraph of section 12, first above quoted, in the light of the principles' stated, will show that the matters which the grade commissioners are to decide as preliminary to their application to the Special Term for the appointment of commissioners of appraisal are (1) “ that it is necessary for the purpose of carrying out any plan * * * adopted by them, that any' street shall be closed or discontinued, or that the grade of any street * * * shall be changed ” and (2) either that some land will be injured thereby or be taken therefor. It is manifest that the land to be injured may Melude land, no part of which is to be taken, and as to such land the grade commissioners may or may not institute the condemnation proceedings authorized by the act. If they do not institute them, the owner, as is shown above, may seek his day in court elsewhere. But as to land to be taken, the condemnation proceedings must be instituted.
But when part of a lot is to be taken, and a part left, it is not for the grade commissioners to decide whether the part to be left is to be injured or not. Upon that question the owner is entitled to be heard before a constitutional tribunal, and cannot be foreclosed by the ex parte determination or failure to determine of the grade commissioner’s, whose function it is to devise and adopt the grade crossing scheme, but not to adjudicate upon the rights of land owners.
In the cases before us the grade commissioners did decide that it was necessary to take some of the land of these appellants. That was not a judicial decision—it was a mere-statement of an indisputable fact. That fact being conceded, the judicial question results from it whether the part of the owner’s land remaining to *342him. is or is not to be injured thereby. That question it is the right of the owner to have determined in a proper court upon evidence, and no act or omission of the grade commissioners can deny to him the right. Jurisdiction of that question is incidental to the jurisdiction given to the commissioners appointed by the court, to ascertain the compensation to be paid to the owner of the land. , The act itself declares that the compensation is to be for “ the land proposed to be taken, or which may be injured.” In construing the clause last quoted, as indeed the whole of section 12, it should be borne in mind that the ■ government is stripping the individual of his property against his consent, and, therefore, the statute should be liberally construed in favor of the individual, in order to protect him against the unnecessary exactions of the government. No. matter how; narrow the act may be in specifying the items of “ private property ” to be considered in fixing the compensation for ■it, the act must either be construed as intending to cover every item and element that needs consideration in fixing “-just compensation,” or the act itself must be condemned as unconstitutional (Menges v. City of Albany, 56 N. Y. 374) and we need not condemn it. The application of the grade commissioners for the appointment of consth tution'al commissioners follows, the terms of the statute, and, therefore, must in like manner be construed, that is, as embracing every item and element that needs consideration in fixing “ just compensation ” for the property taken. It follows that it was the duty of the commissioners of appraisal to consider the question of injury and consequent damages to the land not taken.
. It is apparent that that, question cannot be properly considered and determined, without taking into consideration the situation as it is, .and as it.will be when the. plan adopted by the grade commissioner’s shall be executed. ' Just compensation is the constitutional measure of damages, and this the Grade Commission Act, properly construed, was intended to secure to the individual owner. He should not be deprived of it by any narrow or illiberal construction.
The land owners in effect asked to have their damages, appraised upon the basis of the situation and value of the remnant of land. left to them, as affected by the plan adopted by the grade commissioners, when carried out and completed; This was refused. The refusal was error. The owner should receive: First, the full value' *343of the land taken ; second, where a part only is taken, a fair and adequate compensation for all injury-to the residue sustained, or to-be sustained, by the construction and effect of the improvement upon it. (Henderson v. N. Y. Central R. R. Co., 78 N. Y. 423 ; Newman v. Metropolitan Elevated R. R. Co., 118 id. 618.)
In view of the conclusion to which we have arrived, the various questions as to the amount of costs need not now be passed upon.
The order confirming the report of the commissioners should be reversed and the matter remitted to new commissioners, to be appointed by the court, with costs to the property owners, appellants.