This was a condemnation proceeding instituted to acquire title to a small piece of land belonging to the defendant Joseph A. Walsh. The land to be acquired was a part of a larger tract. The commissioners of appraisal duly made their report fixing the value of the land taken and the damage done to the remainder *Page 72 of the tract. This report was confirmed at the Special Term. On appeal, the Appellate Division modified the report by striking out altogether the damages awarded to the defendant.
This left the defendant without any compensation at all for the taking of his property or for his damages. Clearly, the determination of the court at the Appellate Division was erroneous as the respondents' counsel admitted on the argument.
If the Appellate Division was dissatisfied with the report of the commissioners it should have directed a new appraisal.
Inasmuch as there will be a rehearing in this proceeding, it appears proper to say a word on the question of damages.
The general rule in this state is that in the absence of some statute the owner of property abutting on a street cannot claim damages for lawful change of grade in the highway. (Conklin v.N.Y., O. W. Ry. Co., 102 N.Y. 107.)
The appellant bases his demand for damages for a change of grade on the rule laid down in South Buffalo Ry. Co. v.Kirkover (176 N.Y. 301) which is that when land is taken by a railroad company, the owner may recover the market value of the land actually taken, also any damages resulting to the remainder of his land, including the damage that will be sustained byreason of the use to which the part taken is put by the railroadcompany. The part of the appellant's land taken is used for the purpose of erecting on it one end of a retaining wall which extends entirely across the street. It is not correct to say that the land taken is used for the purpose of changing the grade of the street for which the railroad company obtained authority in another way. The street grade could have been changed without taking the appellant's land. Therefore, he should not in this proceeding recover damages for a change of grade. *Page 73
The order appealed from should be modified by remitting the proceeding to the Supreme Court, with instructions to provide for a new appraisal before new commissioners, with costs.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN, McLAUGHLIN and CRANE, JJ., concur.
Ordered accordingly.