(dissenting). The general facts relating to this case are set forth in the majority opinion.
For the reasons hereinafter set forth, I disagree with the legal conclusion of the majority that the State is liable in this case for damages resulting from the alleged change of grade and, further, I disagree with their factual conclusion that the reconstruction of Route 385 in front of the claimants’ residential building constituted a change of grade injuriously affecting the claimants’ building or abutting land or the use thereof.
It is well established that in the absence of an appropriation of a portion of an abutting owner’s premises the State is not liable for damages resulting from a change of grade in the reconstruction of highways. However, as is evidenced by the cases cited by the majority, the State has in various statutes assumed .such statutory liability as the municipality wherein the reconstruction occurred may have been subject to by virtue of pre-existing statutes. As a general proposition it appears that if the owner of real property within the territorial limits of an incorporated village would have a cause of action for damages resulting from a change of the grade of a road or highway in front of his premises against the State in the present case, it is by virtue of subdivision 15 of section 30 of chapter 544 of the Laws of 1944 which provided in part as follows: “ 15. If the work of constructing, reconstructing or improving such state highways and bridges causes damage to property not acquired * * * the state shall be liable therefor, but this provision shall not be deemed to create any liability not already existing by statute.” (Emphasis supplied.) The above quoted language first appeared in the Laws of 1944 and has been continued in the present subdivision 15 of section 30 of the Highway Law.
The majority appear to assume that at the time of the enactment of chapter 544 of the Laws of 1944 villages were liable to abutting owners for damages resulting from the change of grade of highways located within their territorial limits regardless of what the rights of the village may have been in regard to jurisdiction and control over the particular highway and without consideration of whether or not such change of *106grade was created by the village itself. Such, however, was not the status of the statutory liability of villages in 1944.
Prior to 1883 the owners of property located within the territorial limits of an incorporated village could not recover for damages caused to their property by the change of grade of such streets and highways as abutted their property. Chapter 113 of the Laws of 1883 generally imposed liability for damages resulting from any and all changes of grade ‘ ‘ in any incorporated village (Of. Second Class Cities Law, § 99.) The General Village Law was first enacted by chapter 414 -of the Laws of 1897 and section 159 thereof contained language identical with the first two sentences of subdivision 1 of section 159 of the present Village Law, to wit: “ If a village has exclusive control and jurisdiction of a street or bridge therein, it may change the grade thereof. If such change of grade shall injuriously affect any building or land adjacent thereto, or the use thereof, the change of grade, to the extent of the damage resulting therefrom, shall be deemed the taking of such adjacent property for a public use.” (Emphasis supplied.) Chapter 414 of the Laws of 1897 purported to repeal chapter 113 of the Laws of 1883 which had imposed general liability for change of grade, but in Matter of Torge v. Village of Salamanca (176 N. Y. 324, 328, 329 [1903]) the court held there was no effective repeal and thus, general liability was still imposed on a village regardless of ‘ ‘ exclusive control and jurisdiction ’ ’.
In Matter of Lawrence v. Village of Mamaroneck (263 N. Y. 455, 458 [1934]) it was noted that chapter 113 of the Laws of 1883 as amended prior to 1934 had been carried forward as subdivision 2 of section 159 of the Village Law and held that as of 1934 there was still general liability imposed upon villages pursuant to said subdivision 2 regardless of the provisions of subdivision 1 as to “ exclusive control and jurisdiction ’ ’.
Subsequently, subdivision 2 of section 159 (Village Law) was amended by chapter 294 of the Laws of 1936 which as applicable to this case provided as follows: ‘ ‘ This subdivision shall not apply to the change of grade of streets, highways or bridges by village authorities nor to the change of grade, made by the state, of a bridge or state highway, which is under the exclusive control, supervision or jurisdiction of the state.” (Emphasis supplied.) The above quoted portion of subdivision 2 of section 159 (Village Law) was further amended by chapter 563 of the Laws of 1938 to include in exclusion thereof change of grade created by counties upon county highways. This portion of subdivision 2 of section 159 (Village Law) has *107been continued in identical language in subdivision 2 of section 159 of the present Village Law.
As of the assumption of statutory liability by the State pursuant to subdivision 15 of section 30 of chapter 544 of the Laws of 1944 there was no longer any liability imposed upon villages or upon the State as to the change of grade of highways within the State’s exclusive control, supervision or jurisdiction imposed by virtue of chapter 113 of the Laws of 1883 as continued in subdivision 2 of section 159 of the Village Law. However, it appears that the State would be responsible for changes of grade created by it upon highways within the territorial limits of an incorporated village if such highway were not within its exclusive jurisdiction, supervision or control.
It appears undisputed that the subject reconstruction in the present case involved a highway which, since at least 1912, has been a designated 'State highway and over which the State has at least had since that time exclusive supervision within the statutory language of subdivision 2 of section 159 (Village Law) and over which the Village of Athens has never had “ exclusive control and jurisdiction ” since that time. Under such circumstances it does not appear that there was any statutory liability assumed by the State as to the subject highway in the Village of Athens by virtue of .subdivision 15 of section 30 of the Highway Law as enacted in 1944.
Prior cases dealing with liability on the part of the State as to changes of grade within villages resulting from the elimination of grade crossings deal with the assumption of liability under different statutes and facts and are inapplicable to the instant case. The cases dealing with abutting owners in cities are also inapplicable.
Providing landowners damages in cases of change of grade without an appropriation within cities or under certain circumstances within villages and denying such damages to landowners generally along highways would seem unfair and unrealistic in this day and age. The selective assumption of liability by the State for changes of grade as to cities and under certain circumstances as to villages emphasizes the inequality of .rights of landowners abutting State highways. The resolution of such patent inequality, however, is for the Legislature and in any event is not for an intermediate appellate court.
A review of the photographs submitted as exhibits and the relevant testimony reveals that the conclusion of the trier of the facts that there was no change of grade with an injurious *108effect upon the claimants’ property within the meaning of the Village Law was supported by the record. It does not satisfactorily appear that the water damage allegedly suffered by the claimants since the reconstruction of the highway was proximately caused by such reconstruction, and the .sidewalk construction would appear to be a benefit to the residence.
The judgment appealed from should be affirmed.
Greenblott, Cooke, and Sweeney, JJ., concur with Staley, Jr., J.; Herlihy, P. J., dissents and votes to affirm, in an opinion.
Judgment modified, on the law and the facts, in accordance with this opinion and case remitted to the Court of Claims for further proceedings not inconsistent herewith, and, as so modified, affirmed with costs to claimants.