I concur in the proposition that the plaintiff cannot sustain his complaint under the provisions of the Highway Law (Laws of 1903, chap. 610), but I cannot assent to the conclusion reached by the court, that chapter 754 of the Laws of 1897, as amended (incorporated in the Railroad Law as §§ 60-69), known as the Grade Crossing Act, does not give compensation to abutting owners for change of grade of highways and streets necessary to the construction of an underneath or overhead railway crossing.
Notwithstanding the ambiguous language of the act, I think it can be fairly said that it was the intention of the Legislature to provide for payment by the municipality to abutting owners of the damages which they might sustain because of such change. While the object of the act was to secure greater safety to the public by the abolishment of crossings of railways at grade, the necessity for and the propriety of the large expenditure incident thereto, in any particular case, was left to the determination of the Railroad Commissioners. The Legislature was aware, from laws previously enacted by it, that for any change of grade of streets in cities and *100villages the municipality must pay the damages sustained by abutting owners. It must also be presumed to have been cognizant of the holdings of the courts that an abutting owner is not entitled to any compensation for the lawful change of grade of a street or highway in front of his premises unless it is given him by some statutory provision, even though he may own to the center of the highway. (Conklin v. N. Y., Ont. & Western R. Co., 102 N. Y. 107; Rauenstein v. N. Y, Lackawanna & Western R. Co., 136 id. 533.) In view of the provision of the act that the State should pay one-quarter of the expense and that only $100,000 in any one year should be appropriated therefor, the Legislature could not have expected that the Railroad Commissioners would direct a change of grade except at congested points of travel where crossing upon the surface of the tracks had become most dangerous. This might occur in some measure in country towns as well as in cities and villages. Where-ever it did occur in country towns it was likely to be brought about because of the establishment of settlements and the building of houses and factories adjacent to the highway. I do not think the Legislature intended that the abutting owner in a city or village should be allowed compensation for the damages sustained by him in raising or lowering the street and to deny like damages to an abutting owner upon a country highway. In all the cases in which an abutting owner has been denied the right to damages for the change of grade of a street or highway, the harshness of the rule has been recognized, and it seems to me that any statute which apparently seeks to remedy it should be construed with fair liberality. The conceding of damages to abutting owners for change of grade has been a subject of legislative growth. City charters from time to time relaxed the rule, and finally abutting owners in villages were accorded damages, and now abutting owners in all cities and villages are given the right to recover such damages as they may sustain by reason of the change of an established grade of a street. And it seems to me that this right has now been accorded to an abutting owner upon a country highway where a change of grade is made necessary by reason of the authorized change of a grade railroad crossing to one underneath or overhead. Although not applicable to plaintiffs situation, chapter 610 of the Laws of 1903, which provides that damages may be recovered by an abutting' *101owner for change of grade in the macadamizing of country highways, may be cited as casting some light upon legislative growth and intent.
An analysis of the Grade Crossing Act strengthens this construction. The general provisions with respect to existing crossings at grade are that upon petition, or upon their own motion in case of necessity, the Railroad Commissioners may, after notice “to the owners of the lands adjoining such crossing and adjoining that part of the highway to be changed in grade” and hearing, order the crossing of the highway changed to overhead or underneath, in which case the railroad company shall do the work, under the supervision of the commission, and pay one-half the total expense thereof, and the municipality in which the crossing is located shall procure the lands, rights and easements necessary therefor, and pay one-quarter of the total cost, the State at large paying the remaining quarter. By section 63 the municipality is given power to acquire by purchase such lands, rights or easements as may be necessary, and in case of inability to do so it is directed to acquire the same by condemnation, either under the Condemnation Law or under such provisions of its charter as may apply. And by section 65 it is provided that the expense of construction shall be paid primarily by the railroad company, and the expense of acquiring additional lands, rights or easements shall be paid primarily by the municipal corporation wherein such highway crossings are located. By section 67a the municipality is given power to borrow moneys for such purpose as well as to pay its final proportionate part.
It will be observed that no step is to be taken by the Railroad Commissioners in ordering an underneath or overhead crossing, either upon petition or upon their own motion, without notice not only to the railroad company and the municipality, but to owners adjoining “ that part of the highway to be changed in grade ” and “ persons interested.” Such persons are given the right to appear before the commission in person or by counsel, and the right to appeal from its decision. These provisions indicate that the Legislature regarded the abutting owner as different from the ordinary citizen interested in an improvement in his town. The right to have notice and to be heard and to appeal from an adverse decision shows? it seems to me, that the Legislature assumed the abutting *102owner to be a person interested in the destruction of his property by the raising or lowering of the highway in front of his premises, and as one for whom they had provided compensation which he was finally to receive from the municipality. If the act be not construed to give damages to an abutting owner for the change of grade the provisions of section 63 with resjiect to acquiring rights ■ or easements by purchase or condemnation under the Condemnation Law or under the provisions of the charter of a municipality, are meaningless. If all that was intended was the acquiring of land to widen the existing highway, or the discontinuance of the old highway and the laying out of a new one, the Highway Law (Laws of 1890, chap. 568, §§ 80-92) contained ample provision to accomplish that object. Under that law the railroad company or any person assessable for highway labor could apply to the highway commissioner and to the County Court for the appointment of commissioners to determine the necessity of the highway proposed to be laid out or altered, or the uselessness of the one proposed to be discontinued, and to assess the damages therefor. Highways have thus been laid out, altered or discontinued for many years, and the proceeding is quite simple compared with that under the Condemnation Law. If it were not the intention of the Legislature to permit abutting owners to recover damages for their easements and rights as such, growing out of the change of grade of the highway adjacent to their lands, it is difficult to conceive why the Legislature directed that the municipality should institute condemnation proceedings under the Condemnation Law.
In addition, it seems to me that the decision in Matter of Torge v. Village of Salamanca (176 N. Y. 324) is authority for construing the Grade Crossing Act as giving damages to abutting owners for change of grade in the construction of underneath or overhead crossings. While the question was not directly before the court, still both the Court of Appeals and the Appellate Division in their discussion of the questions involved assumed that the act provided for such damages.
I do not consider whéther or not the demurrer to the plaintiff’s complaint should have been sustained on the ground that no action would lie against the defendant town, or because the complaint fails tp allege that the plaintiff filed notice of his claim for damages with *103the Board of Railroad Commissioners within six months after completion of the work of changing the grade. I have confined myself to the giving of reasons why I do not concur in the conclusion of the court that the statute fails to give damages to abutting owners arising from the change of grade.
I dissent from a reversal upon the grounds stated in the prevailing opinion.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs.