The complaint has been held good as against the defendant town, not by reason of any liability imposed by the statute, but solely because of the order of the Board of Bailroad Commissioners made under section 62 of the Bailroad Act, in which order it was provided that the defendant town should pay plaintiff for his damage resulting from the change of grade. Such is the ground of liability as stated in the opinion of the learned trial judge. We are at a loss to understand, however, without either common-law or statute liability to pay for the injury which plaintiff has suffered, how such liability can be imposed upon defendant town by an order of the Bailroad Commissioners. By no statute are they given power to determine whether a town shall be made liable to an abutter upon a highway in a town for damages by reason of the change of grade thereof. Such part of their order, therefore, as assumes to make such determination is made without authority and is void. The affirmance of that order by the Appellate Division and by the Court of Appeals means only the affir¿nance of such part of the order as is within their jurisdiction to make.
There is abundant authority for the proposition that at common law an abutter has no claim for damages against a municipality for a change in the grade of a highway. (Radcliff’s Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195; Conklin v. N. Y., Ont. & Western R. Co., 102 id. 107; Rauenstein v. N. Y., Lackawanna & Western R. Co., 136 id. 528.) And this rule is held even though the change of grade be so radical as to render difficult or even to cut off access to his property. (Dillon Mun. Oorp. [4th ed.] § 990.) That this rule in many cases has worked hardships is admitted by the authorities. In cities and incorporated villages the rule has been changed by statute. Such municipal corporations have been made liable for injuries resulting from a change of grade. For injuries suffered by an abutter in a town, however, no remedy has been given by statute except in the single case heretofore referred to by the act of 1903. This assertion is challenged by some of my colleagues, who read from the sections of the Bailroad Law regulating grade crossings and their abolishment the imposition of such liability upon the town. Am I right, then, in this assertion ?
But what rights or easements have been taken from the plaintiff in the changing of the grade of this street? If the plaintiff’s property had been situated within a city or incorporated village the plaintiff would be entitled to the right or easement of the highway as it was then located, and the change of the grade to his injury would be the taking from him of a right or easement for which the municipality must under the statute pay him. There never has existed any right or easement in an abutter outside of a city or incorporated village in the street at any existing grade. His right or easement has always been subject to the right of the municipality, for the public good, to change the grade of the street without compensation to him. No new right or easement in an abutter in a town is declared or given by this statute. The intended creation by this statute of new rights to be condemned would be a violent inference which, under the rule of statutory construction cited, would be wholly without warrant. The natural interpretation of the statute is that the municipality must purchase or condemn any rights of an abutter already secured by common law or
The case of Matter of Torge v. Village of Salamanca (176 N. Y. 324) is pressed upon our attention as indicating a different interpretation of this statute. That was a case, however, which arose upon the rights of an abutter in an incorporated village, and the question there discussed was simply a question as to the remedy to be pursued. The question before us here was not there before the court.
I recommend, therefore, that the interlocutory judgment be reversed, and the defendant’s demurrer be sustained.
All concurred, except Houghton, J., dissenting in opinion.