The claim filed states that it is for damages in changing and altering the grade of the highway in front of and abutting the claimant’s premises, by raising a dike or mound of earth along the river front, while engaged in the enlargement of the Oswego canal, whereby the premises are below the established grade of said roadway and are seriously injured. The claimant owns to the center of the highway. A motion was made to dismiss the claim upon the ground that it did not state a cause of action, as in the absence of statutory provisions no liability resulted from a change in the grade of a public highway. In answer to the motion the claimant made a statement of the facts upon which his claim was based, which may be considered as an offer to prove such facts. The court considered such facts and held they were immaterial and if stated in the claim could not affect the result. The additional facts relied upon by the claimant to establish his claim were, in substance, that a highway runs between the claimant’s premises and the Oswego river and, in canalizing the river, a dam with an increased elevation of approximately eleven feet was built in the river below the claimant’s premises, with the result that a dike was built to protect claimant’s premises and other property from the overflow. As a matter of convenience and economy in prosecuting this canal work, the dike was built upon the highway and a new highway established upon the dike. This was not a change of grade of a highway within the fair meaning of those words, but was a canal improvement which destroyed the old highway, using it as a basis for the dike.
Concededly the change of grade of a public highway gives the property owner no claim for damages unless the statute makes provision therefor. The original taking of the land for highway purposes carries with it the right to use it for any highway purposes which from time to time may be required. But here there was no trouble with the highway or any desire *26to change its grade. The damming of the river for canal purposes made it necessary to build the dike. The action of the State was solely in the improvement of the canal, and the improvement of the canal and not the maintenance or improvement of the highway cast an additional burden upon the claimant’s land. He owned the fee, which was burdened only with the right to maintain a highway over it. His injury was caused by the canal improvement, as the highway was changed solely for that purpose. Fennell, J., in his dissenting opinion in the Court of Claims (13 State Dept. Rep. 39, 43) has so well stated the facts and the rights of the claimant that it is unnecessary to repeat them here. By denying damages to the claimant the whole burden of the dike is placed upon him; the other property owners are protected at his expense.
The judgment should be reversed, with costs, and the matter remitted to the Court of Claims for its further consideration.
All concurred, except Woodward, J., dissenting with an opinion.