This is an appeal from a judgment against claimant after trial in the Court of Claims. The claimant and his predecessor had for many years operated a street railway system over various streets of the city of Syracuse pursuant to authority given by various franchises. Claimant operated his street cars over tracks laid in James street and North Salina street in Syracuse.
In the summer of 1934 a grade crossing elimination project was in progress in the city of Syracuse. When the time came for the erection of heavy girders to carry the new elevated railroad structure across James street and North Salina street, the Syracuse grade crossing commission ordered those streets to be temporarily closed in the interest of public safety. The two streets were accordingly closed and the claimant was consequently unable to operate his street cars over the James street crossing for a period from October 15 to October 23, 1934, or over the North Salina street *508crossing for a period from November 13 to November 24, 1934. Claimant, in order to keep his street cars in operation during the time said streets were closed, provided substituted service by constructing temporary tracks over which he operated his cars. The stipulated cost of providing the temporary substituted service was $5,600.
In Transit Comm. v. Long Island R. R. Co. (253 N. Y. 345) it was declared that the franchise of a public service corporation to use the streets is at all times subject to the police power of the State; that such corporations holding franchises are bound to relocate their structures whenever the public health, safety or convenience requires at their own expense in the absence of any statutory provision relieving them of the cost.
The elimination of railroad grade crossings in the city of Syracuse was authorized and the Syracuse grade crossing commission was created by chapter 825 of the Laws of 1928. It is argued here that section 9 of that act applies to the present controversy and is statutory authority sufficient in this case to exempt the claimant from the common-law duty to finance his own temporary relocation of his tracks. That section provides as follows: “ If the work of such elimination causes damage to property not acquired as above provided, the State shall be liable therefor in the first instance, but this provision shall not be deemed to create any liability not already existing in law.” Claimant asserts that by force of section 9 of chapter 825 of the Laws of 1928 the State is liable in the first instance to claimant for his damages. The words “ damage to property not acquired,” as used in section 9 of chapter 825 of the Laws of 1928 and in section 8 of chapter 439 of the Laws of 1926, are not intended to include damages such as are involved here. We are unable to find any cases where those words have been applied to cover damages occurring to utility lines laid in public streets. Damages to adjoining private property, such as damage resulting from change of grade, cutting off light, etc., or access to, have frequently been the subject of discussion in the courts in connection with grade crossing cases. A few of such cases are: Moller v. N. Y. C. R. R. Co. (282 N. Y. 188); Egerer v. N. Y. C. & H. R. R. R. Co. (130 id. 108); Champion Oil Co., Inc., v. State of New York (161 Misc. 143).
When Transit Comm. v. Long Island R. R. Co. (253 N. Y. 345) was in process of litigation section 7 of the New York City Grade Crossing Elimination Act (Laws of 1928, chap. 677) was in force. It is similar to section 9 of chapter 825 of the Laws of 1928 (supra). ' Judge Crane, in his opinion in the Court of Appeals, made no reference to this section. However, the Appellate Division gave *509it consideration in that case (228 App. Div. 297), where the court said: “It only remains to consider whether the mandamus order appealed from was proper, because, assuming appellant’s contention to be sound, it might present its claim for reimbursement to the Court of Claims, under section 7 of the New York City Grade Crossing Elimination Act. That section provides, in substance, that if the work of said elimination causes damages to property not acquired, and the amount thereof is not agreed upon, a claim therefor may be presented to the Court of Claims, which may hear and determine the same. In my opinion, section 7 (supra) has no application to a claim of this character. The statute refers to ‘ damage to property not acquired.’ ”
The Appellate Division was reversed but obviously not upon that ground.
Section 6 of chapter 678 of the Laws of 1928 applied to the elimination project involved in Western New York Water Company v. Brandt (259 App. Div. 11) and to Matter of Town of Cheektowaga Grade Crossings (Id. 141). That section reads the same as section 9 of chapter 825 of the Laws of 1928.
It seems to me that the damage here is of the same nature as the damage in Transit Comm. v. Long Island R. R. Co., Western New York Water Company v. Brandt and Matter of Town of Cheektowaga Grade Crossings (supra).
Damage of that nature has never been classified as being within the meaning of the statutes relied upon, although as above pointed out there has been ample opportunity for the courts to do so.
The term “ property,” as applied to claimant’s franchise, means it would seem the title or ownership of the franchise itself. A destruction or abrogation wholly or in part of the franchise itself might be a damage to “ property not acquired.”
It is very doubtful if the temporary closing of a street by the public authorities for a proper purpose can be said to be an injury inconsistent with claimant’s rights under its franchise. Claimant’s franchise to use the streets for its street car tracks was subject to the use of the street by the public for all proper purposes. (Western Union Tel. Co. v. Syracuse El. L. & P. Co., 178 N. Y. 325; Brooklyn El. R. R. Co. v. City of Brooklyn, 2 App. Div. 98.)
In the Brooklyn case a sewer was being built by the city. On account of the proximity of plaintiff’s elevated railroad to the sewer excavation, proper regard for the safety of the public made it necessary to shore up the elevated structure. The question litigated was whether that was an expense which the railroad company should pay or whether it should be paid by the city whose sewer digging operations made the shoring up necessary.
*510Judge Cullen, in his opinion in that case, said (at p. 101):
“ Any grant to the plaintiff must necessarily be construed as subject to the right of the public to enter upon the street for such purposes, and any interference with the plaintiff’s road in the proper construction of such work must be considered a burden which plaintiff assumed to bear. It would be most unreasonable to suppose that the city, knowing that from time to time it would have to tear up the street and make excavations therein, should make a grant to the plaintiff, the effect of which would be to subject the city to increased expense in such improvements. * * *
“ But we prefer to rest our decision upon the other ground, that grants to railroads or other corporations in public highways must be construed as subject to the paramount right of the public to use those highways for all proper purposes. We do not say that there might not be a use of a street by the public of such a character as to destroy, practically, the plaintiff’s franchise and property, and so far unforeseen at the time of the grant as to require compensation to the plaintiff for the injury to or destruction of its property and franchises. But such uses of the public street as were notorious and of common exercise at the time of the grant must have been contemplated by all parties, and any grant must be held subject to such uses of the street as would be naturally contemplated.”
We are of the opinion that under the common law claimant was obligated to bear his own expense attendant upon the temporary relocation of his tracks and that there has been no statutory change of that common-law rule.
The judgment of the Court of Claims should be affirmed.
All concur, except Dowling and Harris, JJ., who dissent and vote for reversal and for judgment in favor of claimant for $5,600 and interest, in an opinion by Dowling, J. Present —Crosby, P. J., Taylor, Dowling, Harris and McCurn, JJ.