The record in this case shows that “ This claim is for damages arising from the changing and altering the grade of a roadway in front of and abutting on the. premises hereinafter mentioned by raising a mound of earth, dike and embankment along the river front in the month of May, 1913, and continuing thereafter during the year 1913 at Minetto ” by the State of New York “ while engaged in the enlargement of the Oswego canal under chapter 147 of the Laws of 1903 of the State of New York, whereby claimant’s premises are now below the established and existing grade of said roadway.” In other words, the claimant is asking for consequential damages to his premises by reason of the lawful raising of the grade of the highway in front of his premises, for it is conceded that “ roadway ” is used in the sense of highway in the statement of the claim.
The only distinction attempted to be made between this case and that of Warner v. State of New York (132 App. Div. *27611; affd., 204 N. Y. 682) is that in the Warner case the claimant did not own the fee of the highway, while in the present case the appellant claims to own the fee to the center of the highway. There is no suggestion of negligence or of unlawfulness; no one questions the right of the State, under the statute referred to, to change the grade of highways wherever necessary to the work of developing that other highway, the Barge canal, and unless a different rule applies in the case of ownership of the fee to the center of the highway, the case is governed by the Warner case and the dismissal of the claim is in accord with law. All that is claimed to have been done is that the State, within the Emits of the highway, has raised the grade. If the grade had been changed upon that part of the highway to which the claimant has no title, the damages resulting would obviously be the same and the claimant would have no right to compensation unless the statute gave it to him. His right as owner of the fee is merely to make such use of the highway as is not necessary to the pubhc for highway purposes, and the change of the grade does not change this right, however much it may interfere with his convenience as an abutting owner. The principle that the sum originally paid on the acquisition of the right of way must be deemed to have included compensation for damages occasioned by changes made necessary to meet the increasing demands of business, or to conform to the requirements of pubhc improvements, as asserted in Matter, of Grade Crossing Comrs. of Buffalo (209 N. Y. 139, 144) must, it seems to us, prevail here. The grant of a way for a highway is a surrender of the entire use for highway purposes. Any added burden, apart from the legitimate uses of a highway, is a trespass upon the rights of the owner of the fee, but. it cannot be said that a change in the grade of a highway, to conform to the requirements of a public improvement of the same general character, constitutes an additional burden. It is still the same highway, serving the same purposes, and the fact that it may incidentally serve a further purpose does not change the law. In this case the part of the highway which actually serves the double purpose is not upon the claimant’s land; he is merely an abutter, and the change of his portion of the highway to conform to the remaining grade does not *28take his property in any sense; it merely makes consequential damages, which are not recoverable in the absence of a statute providing compensation. While the recent case of Burmaster v. State of New York (186 App. Div. 131) may be distinguished, it is fundamentally based upon the rule of law announced in Matter of Grade Crossing Comrs. of Buffalo (supra) and is in harmony with the conclusion here reached.
The judgment and order appealed from should be affirmed, with costs.
Judgment reversed, with costs, and the matter remitted to Court of Claims for its further consideration.