This is an appeal from an order of the Supreme Court, made upon the 9th day of July, 1895, and entered in Erie county September 6, 1895, confirming the report of commissioners appointed upon the application of the grade commissioners of the city of Buffalo to assess damages for the taking of land under section 12 of chapter 345 of the Laws of 1888, and the amendments subsequent' thereto.. ■
Such grade commissioners were appointed by ■ the act above referred to for the purpose of relieving the city of Buffalo from the burden of the grade crossings which the numerous railroad companies centering in that city had imposed upon its streets. They are given full power to contract for the city with such companies con-' cerning any changes and work necessary to be done in carrying out the plans for relief, and to agree with any company as to what proportion of the expense shall be borne by the company, and what part shall be assumed by the city. They are given the power to-carry any street over or under the railroad crossing- it, and to that end they are authorized to change the grade of, and to widen, the street which they propose to so change. In short, they are given very broad powers to lay out a plan for improving such of the grade crossings in the city as they deem necessary, and to take such property and make such changes as they deem necessary to carry out their plan. In pursuance of their duties they deemed it necessary to take Michigan street over the railroad tracks which crossed ity and in order to do so it became necessary to build a long approach, in such street on either side of the tracks in order to get up to the-*344level of the bridge to be built across them. In order to do this, they determined to widen Michigan street where such approach was to be built, and to take a strip of land thirty-one feet in width from the adjacent owners, who are appellants in this matter. This plan also necessitated constructing in the middle of Michigan street, and opposite the appellants’ premises, a solid structure with perpen-dieular walls of masonry, and filled in with- earth as an approach, fifty-six feet in width and of the height of thirteen feet and upwards •opposite the whole of their premises; such approach would be thirty-six feet distant' from the lands left to the appellants, after taking the thirty-one feet from them.
Section 12: of such act, among other things, provides that “if the ■commissioners shall decide that it is necessary, for the purpose of carrying out any plan, * * * 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 to compensation • or that any land shall be taken incident to the changes of the grade of any .street or to widen any street, * * * the commissioners, by their chairman, m'ay 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 or persons interested in the land proposed to be taken, or which may be injured.” Under this section, upon the application of the grade commissioners, a commission •of three was appointed by the court. All parties duly appeared before it, and the facts of the proposed plan and change of grade, as above stated, were agreed to,, and proof was made of the value of the strip of thirty-one feet of land so sought to be taken. The •owners thereupon offered, to show the diminished value of the remainder of the premises by reason of the structure so proposed to "be erected in the street. The commission excluded all evidence on that question, and stated that it would not, in making its award, consider the effect which such structure would have upon the value of the remaining premises, nor allow any compensation for the same. Such ruling was made upon the theory that such structure was but a change of the grade of the street in that locality, and that, under the law, as settled in this State, damages cannot be *345allowed against a city to abutting owners, arising from a change in the grade of a street.
The report of the commission was affirmed at Special Terin, and from such order this appeal is taken.
In the cases of Conklin v. N. Y., O. & Western Railway Co. (102 N. Y. 107); Ottenot v. N. Y., L. & Western Railway Co. (119 id. 603), and Rauenstein v. N. Y., L. & Western Railway Co. (136 id. 528) the question arose as to whether, when the grade of a highway or street had to be raised to take it over a railroad, the abutting owners could recover damages for the depreciation in the value of their premises caused thereby. By such cases it seems to be entirely settled that damages so suffered cannot be recovered against either the railway company, whose road renders the change of grade necessary, nor the city or town at whose direction the change is made. Such cases also bold that a structure built in the middle of the street, similar in all respects to the one in question, is to be considered as a mere change of grade. In the Ottenot case, more fully reported in 28 New York State Reporter, 483, and in the Rauenstein case, above cited, the structure under consideration was practically like the one before us. However harsh in its operation this rule may seem to be, we are controlled by it, and these appellants have no relief for the injury of which they complain, unless it is to be found in some special statute affecting their case. (See, also, Folmsbee v. City of Amsterdam, 142 N. Y. 122.)
There is no provision in section 12, above referred to, allowing the abutting owners to apply for a commission to assess their damages arising from any proceeding which the grade commissioners may take. Under no circumstances can they, on their own motion, procure an assessment of such, damages. Unless the commissioners institute such proceeding the owners are left to their remedy by action. And nowhere in the section is there any provision affecting the measure of damages to be allowed in such an action. The section, however, does provide that if the grade commissioners shall decide that it is necessary, for the purpose of carrying Out their plan, that the grade of any street, or portion thereof, shall be changed, and that any property may be injured thereby, for which the owners or persons interested therein are lawfully entitled to coinpensa*346tion, they may apply for a commission to ascertain the compensation to be paid the owners therefor. It also provides that if they shall decide to.take any land as incident to a- change of gi'ade, or to widen any street, they may apply for a commission to ascertain the compensation to be paid to the owners or persons interested in the lands so proposed to be taken. The right, therefore, to compensation for injury caused by a change of grade is given by this section only in the event that the commissioners so decide, and institute a proceeding by which it can be ascertained. In the event that they omit to do so, no relief whatever is given by this statute to the owners for such injury. The damages sustained by the talcing of land by the commissioners is not made to' depend upon their decision that ■“ the owners are injured thereby,” or that they “ are lawfully entitled to compensation' therefor.” Upon the'mere decision that théy need the land, they are to procure the appointment of a commission to ascertain the just compensation to be paid for taking the same, but as to compensation for a change of grade it is all made to depend upon their decision that the owners have sustained ■ an injury thereby. Although, at the first reading of this section I thought otherwise, a careful study of its language convinces me that no oth¿l'^ or greater rights are given to abutting owners for injuries sustained by mere change of grade than as above stated. Nor, upon consideration, do I see why any greater rights should be given by it. It is the settled law of the State, affecting every citizen alike, that he holds his land abutting upon a street subject to the right of the public authorities to change its grade in such manner as they shall deem best for the public good. “ A change of grade upon a highway invades no private right.” (Conklin v. N. Y., O. & W. R. Co., 102 N. Y. 111.) A-nd, therefore, in every street in the city of Buffalo, the city authorities have the right, except so far as it is affected by section 406 of its revised charter of 1891,. to change the grade without making compensation to the abutting owners therefor. Why then should wé expect a different rule in favor of those who happen to be affected by the improvements carried on under the provisions of this statute.
In the case before us, the grade commissioners have not made application for a commission to ascertain the compensation to be paid the abutting owners for the change of. the grade of Michigan *347street. Nothing in the record indicates that they have ever decided, that the chánge of grade in such street will injure any of the parties before us, or that any of them are entitled to compensation, therefor. Their. petition merely avers that they propose to widen Michigan street, and that the lands therein described are necessary for that purpose. It then describes the strip of thirty-one feet in width, sets forth the interest which these appellants and others have-therein, and asks for the appointment of. three commissioners to-ascertain and report the just compensation to be paid to the owners- and persons interested in such lands, for taking the same, to the end that the city of Buffalo may acquire the fee therein. Plainly, this-is but a proceeding for. the taking of land, and no provision of this-statute allowing compensation for a change of grade is applicable to-it. It is a case where the measure of damages usually applicable in condemnation proceedings for the taking of land should be applied. The land taken by this proceeding is to be converted into a street at the same grade with the lands remaining. No structure is to be put upon it. The structure which it was offered to show would work a serious injury to the .remaining premises was not claimed to be-upon the land taken, but upon Michigan street itself, and the strip-so taken is for the purpose of widening the street, and thus operating to the advantage of the premises left. The change of grade in Michigan street does not result from taking the land. It is not at ■all dependent upon it, and the damages flowing from such change cannot be said to be incident to such taking. Upon no principle,, therefore, could the damages claimed by the appellants be allowed them, and the ruling of the commissioners was correct. The 406t-h section of the city’s revised charter of 1891 allows any abutting owner, when the recorded grade of any street is changed by the city, to claim, within one year thereafter, the damages resulting therefrom, and a method is therein provided for their ascertainment- and assessment. This remedy is still open to the appellants. The change of grade in question is clearly one made by the-city, and the fact that the grade commissioners have taken, appellants’ land to widen Michigan street, and that damages have-been ascertained and paid “for suoh taking” does not seem in any way to be a bar to an application under the charter for damages, caused by a change of grade in the same street made by the same *348commissioners. The provisions of section 12, which allow the commissioners to take lands without paying for the damage caused by their changing the grade of a street opposite, them do not conflict with the owners’ right to apply to the city for such "damages under the provisions of its charter. Hence, the power so given to the grade commissioners does not infringe upon a property right given to the abutting owners by the city charter. The right still remains to them in full force, and, notwithstanding the provisions of this statute and the enforcement of these proceedings against them as abutting owners, they stand, so far as- compensation for a change of grade is concerned, upon a par with every other citizen of Buffalo. They have the same rights and the same remedies that every other owner has.
For these rea-sons I conclude that the rejection by the commission of the evidence offered was correct, and that the court at Special Term properly confirmed its report.
. As to the question of costs presented upon this appeal, inasmuch as this court concludes that the order confirming the report of the commission must be reversed, it would be of no interest to discuss it in this opinion.'
- Merwin, J., concurred.
Order reversed and matter remitted to new commissioners to be appointed by the court, with costs and disbursements of this appeal to the appellants, the property owners.