I do not understand that the necessity, or at least the propriety, of making the change in bridging the street for the railroad to cross over, and the consequent lowering of the grade of the street, is questioned. Bnt "it is pontend.ed that the payment. of damages to the adjoining owner, for damages done in lowering the grade, is a condition precedent before the grade can actually be changed. That, claim is founded upon the piro visions of section 30 of the White charter, which applies to the city of Rochester, and piro vides that the common council shall.not change the grade of any street which has been legally established, excepit upon the vote of. two-thirds of all the members of the common council, and also except upion eompiensation for damages doné, to be ascertained as damages are ascertained under the Condemnation Law for lands taken.
/ Assuming that this piro vision of the charter has full effect, regard less of the pirovisions of the Railroad Law, I am inclined to the opinion that it is not necessary to ascertain and pay the damages done to an adjoining landowner before changing.the grade of the street. The language of the section is u compensation for damages done,” not “ to bé done,” pire scribing the precise method by which the damages are to be ascertained. I do not say that proceedings *885may not be taken in advance to acquire the rights and easements of an adjoining landowner. The view which I take of this provision may at first seem over critical, but taking into account the difficulties which in many instances may be encountered in determining the damages in advance and the language of the statute itself, I think this view is the more reasonable.
The plaintiff brings this action upon the theory that the defendant is a wrongdoer. If that be true the action is well brought, but if the view I entertain is correct, the defendant was not a wrongdoer, and the only remedy which the plaintiff has is to have the damages ascertained under the Condemnation Law. The mere fact that the plaintiff may not institute the proceeding, I think, is answered by the suggestion that if the city itself does not proceed, he may require it to do so by mandamus. It can make no practical difference to the plaintiff whether he or the city institute the condemnation proceeding.
If I am right in the conclusion that the defendant was not a wrongdoer, it' follows, I think, that the plaintiff must resort to' the Condemnation Law for redress. (Matter of Torge v. Village of Salamanca, 176 N. Y. 324; Smith v. B. & A. R. R. Co., 181 id. 132, 142, 143; Matter of Melenbacker v. Village of Salamanca, 188 id. 370.)
I think the interlocutory judgment should be reversed and the demurrer sustained.
McLennan, P. J., concurred.
Interlocutory judgment affirmed, with costs, with leave to defendants to plead over upon payment of the costs of the demurrer and of this appeal.