People ex rel. Myer v. Adam

Spring, J.:

The Grade Crossing Act (Laws of 1888, chap. 845, as amended) provides a detailed and extensive scheme “ for the relief of the city from the obstruction of the streets of the city of Buffalo by railroads crossing the same at grade.” The mode of procedure is mapped out in detail in the act, and the large expense to be incurred in the execution of the iilan is to be borne conjointly by the railroad companies and the city. Section 12 of the act (as amd. by Laws of 1890, chap. 255) provides for the ascertainment of damages caused by carrying out the plan contemplated, and tentatively, at least, the power is vested in the commissioners appointed by the act to set in motion the procedure for their ascertainment.

In carrying out the plan a portion of Washington street was appropriated in front of the j>remises of the relator in this proceeding, and the grade of the street was changed under the direction of the commissioners, so that at the northerly boundary of her premises the street was elevated six feet eleven and three-fourths inches, and at the southerly boundary six feet seven and three-eighths inches. A brick building on the premises which encroached on the street about two inches was demolished, and the tenant who occur pied the same was compelled to abandon the building. The relator requested the grade crossing commissioners to make application to the Supreme Court for the appointment of commissioners' to ascertain the damages which she had sustained' because of the change of grade and appropriation of the street. This the commissioners declined to do.and refused to hear any testimony upon the subject of the damages claimed to have been sustained by the relator. Proceedings were thereupon commenced by mandamus to compel the commissioners to hear and consider the testimony of her witnesses bearing upon the subject of whether she had sustained any damages by reason of the said change of grade, which resulted in favor of the relator. An appeal was taken from the judgment and order of the Supreme Court in favor of the relator to the Appellate Division of this department, which sustained the judgment and order (Matter of Myer v. Adam, 63 A.pp. Div. 540), and the decision of this court was affirmed in the Court of Appeals (169 N. Y. 605).

Upon the hearing the facts stated appeared and one competent witness was produced by the relator who testified that in his opinion damages had resulted from this change of grade. A witness on behalf of the defendants gave a contrary opinion, and the grade crossing commissioners have declined to apply to the court for any commissioners to ascertain the damages, and whether any in fact. have been sustained. It is contended that this decision of the grade crossing commissioners is final, and that the authority is vested in them to determine whether damages in fact have been sustained, and unless there is a gross abuse of that power their decision cannot be disturbed on appeal. This involves, the question as to whether the plan provided by the Grade Crossing Act for the ascertainment of damages is the only remedy to which a j)ersoil injured can resort for damages resulting from the execution of the act. For it would not be claimed that if the Grade Crossing Act vests the power absolutely in the grade crossing commissioners to determine whether any damages have resulted to an abutting property owner over the carrying out of the plan provided in the act that it would be constitutional, unless there is some other remedy under the charter of the city of Buffalo or elsewhere by which he might obtain a review and consideration of his rights.

The plan of the Grade Crossing Act is peculiar to itself, and provides the entire scheme under which the streets are appropriated and the grade changed at the will of the grade crossing commissioners, and the expense thereof is not charged upon the city wholly, but is to be apportioned between the municipality and the railroad companies affected by the improvement. Again it is peculiar in that even though property in the district in which any special change occurs may be benefited thereby, there is no visiting the expenditures which result in such enhancement of value upon the premises benefited.

It is only by virtue of the agreements entered into pursuant to the act between the grade crossing commissioners and the railroad companies that this expense may be apportioned. If proceedings were instituted under the charter of the city (he damages would be primarily imposed upon the city, and there is no provision in the act nor in the charter whereby the municipality may exact contribution from the railroad companies, and the purposes of the act would consequently be frustrated if that proceeding was resorted to. The essence of the plan outlined by the act was this division of the burden, and in no other way can it be worked out except by the. agreements which are provided for and which form a part of its general scheme. It seems plain, therefore, that the only remedy for the ascertainment and apportionment of damages is to be found in the act itself, and that accords with the trend of the authorities.

When this case was before this court on the preceding appeal (63 App. Div. 540) it was said in the opinion (at p. 543): “ But if it could be said that the grade crossing commissioners had power to decide upon their observation that no injury to property was caused for which compensation could be awarded, and then refuse to apply for the appointment of commissioners to ascertain such compensation, refuse to investigate or take evidence offered, and arbitrarily refuse to commence the proceeding, the property owner would be at the mercy of the grade crossing commissioners and would have no remedy whatever. Neither the city nor the railroad companies-could be -compelled to pay damages, except as the result of such proceeding, because neither the city nor the railroad companies caused the injury and damage. It was caused by the grade crossing commissioners, over which the city and the railroad- companies had no control, and the only way to secure damages, that is, com- ■ pensation for the injuries caused by the raising of the grade of the street, would be through the proceedings provided for by the Grade Crossing Act. The intention of the Legislature by the act was to provide the exclusive remedy for all damages sustained resulting from the acts of the grade crossing commissioners thereunder.” Again, by the revised charter of the city of Buffalo (Laws of 1891, chap. 105, § 406), where damages are awarded to an owner of land . by reason of the alteration of the grade of a street they are to be assessed “ upon the real estate benefited by the alteration,” which is not within the purpose of the act under consideration.

Section 12 of the act (as amd. by Laws of 1890, chap. 255) provides that “ if the commissioners shall decide that it is necessary ” to change the grade of any street, “ and that any property may be injured thereby for which the owners or persons interested therein are lawfully entitled to compensation, * * * ■ the commissioners by their chairman may apply to a Special Term of the-Supreme Court for the appointment of three commissioners to ascertain the-compensation therefor to be paid to the owners of or parties interested in the land proposed to be taken or which may be injured.”

While the language of this section, strictly construed, may be said to give the commissioners the absolute right to pass upon the question whether any damages have been sustained, yet we must assume that the Legislature intended to keep within the limits of the Constitution in prescribing their functions and powers. The plan was an extensive one, requiring the expenditure of large sums of money, and was unique but specific in the detailed-formulation of its gem eral design. The grade crossing commissioners were the executive board created by it, and as it was necessary to place somewhere the authority to carry out the pmrposes of the act and to institute legal proceedings, whenever essential that power was intrusted to them. So far as that power extends to the subject of damages, it was intended to be preliminary in its scope. These commissioners are to investigate and -ascertain whether there is any prima faeie war-, rant upon which they may base their application to the court for the appointment of commissioners as. a constitutional tribunal to whom the actual determination of the subject is to be committed. The grade - crossing commissioners could not be expected to apply for commissioners unless there were some facts, some investigation, shown in their petition to justify the court in entertaining the proceeding. But it was not expected that with these commissioners should rest the judicial determination upon a preliminary hearing of a lot owner’s damages or whether any in fact had been sustained by making the ¡proposed improvement. This construction retains the act in its integrity, keeps within its scope exclusively all the -damages which arise from its execution and is not counter to any constitutional provision.

The decision of the grade crossing commissioners should. be reversed, with fifty dollars costs and disbursements in favor of the relator.

Williams and Hisoook, JJ., concurred; McLennan, J., dissented; Davy, J., not voting.