Smith v. Boston & Albany Railroad

Smith, J.:

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. Upon this appeal the respondent does not seek to sustain this order upon the ground stated by the learned trial judge. -His argument seems to be based upon the claim that by sections 83 and 84 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1897, chap. 344) and by chapter 610 of the Laws of 1903 (adding § 11a to Highway Law), as well as by the provisions of the Grade Crossing Act itself, a liability is imposed upon the defendant town to pay for the damages suffered by the plaintiff. I do not understand that any liability is claimed to have been imposed by these sections of the Highway Law prior to the amendment of 1903. The amendment of 1903 provides for damages for the change of grade “ in any town in which a highway has been or hereafter shall be repaired, graded and macadamized from curb to curb by the authorities of the town * * There is no pretense that this highway has been repaired, graded “and macadamized.” The statute apparently refers to those highways upon which the State roads are being built, in which case while the town is made liable for the change of grade to the detriment of the landowner, against such liability may be offset the benefit which he receives by reason of the improved highway.

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 ?

In Sutherland on Statutory Construction, section 371 in part reads: “ If a statute creates a liability where otherwise none would exist, or increases a common-law liability, it will be strictly construed. A statute even when it is remedial must be followed with strictness where it gives a remedy against a party who would not otherwise be liable.” Read in the light of this rule of construction, what provision is there in these sections of the Railroad Law which imposes a liability upon a town to pay an abutter for damages from a change of grade ? If anywhere it must be found in section 63 of the Railroad Law (added by Laws of 1897, chap. 754 and amd. by Laws -of 1899, chap. 226). That section reads as follows: “ The municipal corporation in which the highway crossing is located may, with the approval of the railroad company, acquire by purchase any lands, rights or easements necessary or required for the purpose of carrying out the provisions of section sixty, sixty-one and sixty-two of this act, but if unable to do so, shall acquire such lands, rights or easements by condemnation, either under the Condemnation Law or under the provisions of the charter of such municipal corporation. The railroad company shall have notice of any such proceedings and the right to be heard therein.”

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 statute. Had the change been made by the town officers before the enactment of these provisions of the Railroad Law it will not for a moment be claimed that the town would become liable for the damages which the plaintiff has suffered. I find no phrase in the statute which either directly or by necessary implication imposes upon the town any further liability for a change made under the statute than for a change if made prior to the enactment thereof.

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.