252 A.D. 228 | N.Y. App. Div. | 1937
This is an appeal from a judgment of the Court of Claims awarding damages to claimant for injuries to its property found to have been sustained as the result of grade crossing eliminations.
The judgment appealed from awards claimant $5,000 for injuries to its property determined to have been caused by the change of grade in Amherst street and $25,000 for injuries to its property occasioned by changes other than the change of grade.
Appellants contend that claimant sustained no legal damage because of the change of grade in Amherst street; they assert that the claim here involved arises under chapter 679 of the Laws of 1928 and that said statute provides no remedy to an abutting owner for injuries sustained by a change of grade in a public street.
The Court of Claims has determined, and correctly we believe, that this claim arises under chapter 844 of the Laws of 1926 which
The Buffalo Grade Crossing and Terminal Station Commission was created by chapter 231 of the Laws of 1923, on consolidation of the Terminal Station Commission and the Grade Crossing Commissioners, as an agency of the city of Buffalo to effect the elimination of grade crossings within that city and continued as the agent of the city until the effective date of chapter 679 of the Laws of 1928, when it became the agent of the State of New York. It directed the alteration of the grade in Amherst street in connection with the elimination of these crossings as the agent of the city and the city was liable for damages thereby caused, by reason of the provisions of section 367 of the Buffalo City Charter. While chapter 844 of the Laws of 1926 did not create any new remedy against the State for damages resulting from a grade crossing elimination, it did not destroy any remedy that existed under the provisions of the Buffalo City Charter. (Askey & Hager, Inc., v. State of New York, 240 App. Div. 451; affd., 266 N. Y. 587.)
Claimant, therefore, is entitled to damages for any injuries to its property resulting from the change of grade in Amherst street.
The award of $25,000 concededly is not based upon any liability imposed by statutory or charter provisions; while claimant is entitled, at common law, to compensation for damages arising from the impairment of easements of light, air and access in and to that part of Tonawanda street in front of its property which is now occupied by the water tank and embankment (Story v. New York Elevated R. R. Co., 90 N. Y. 122; Reining v. New York, Lackawanna & Western R. Co., 128 id. 157; Muhlker v. New York & Harlem, R. R. Co., 197 U. S. 544), such damage, if any damage there be, was not extensive and the award must have proceeded upon the theory that claimant was entitled to damages for the closing of its outlet to the north over the original line of Tonawanda
Claimant contends that the award may be supported by reason of the finding that Amherst and Tonawanda streets are “'ancient streets ” which were dedicated by a map and its lots bounded by a street with reference to said map, thereby entitling it to peculiar easements in these streets not commonly possessed by owners of lots abutting on a public street. In Matter of Joiner Street (City of Rochester) (177 App. Div. 361) a similar contention ivas considered by this court and rejected. In that case it was held that “ when a map of a tract of land is made showing such land as laid out in blocks and lots and streets according to a survey and lots are sold and conveyed by deeds in which the lots so sold and conveyed are described by reference to the map and as abutting on the spaces described as streets,” such dedication of the spaces designated as streets gives the owners of such lots, after the spaces become streets of a municipality by acceptance of the public authorities, no special easements not possessed by owners of lots situated on streets otherwise acquired.
Claimant argues that the case of Matter of Grade Crossing Commissioners, Nos. 120 & 125 (210 App. Div. 328; affd., 240 N. Y. 612), detracts from the force of what was written in Matter of Joiner Street (City of Rochester) (177 App. Div. 361). The answer to this argument is that, in Matter of Grade Crossing Commissioners (supra) the only questions involved and decided were the constitutionality of chapter 576 of the Laws of 1916 and the rights thereunder acquired. We see no reason to change or modify the views expressed in Matter of Joiner Street (City of Rochester) (supra).
Dwornik v. State of New York (251 App. Div. 675) involved property situated on the same tract in which the property in this case is situated, viz., The Parish Tract. In that case a judgment based upon an award of damages for deprivation of private easements as appurtenant to a lot abutting on an “ ancient street ” was reversed and the claim dismissed.
The judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.
All concur. Present — Sears, P. J., Edgcomb, Lewis, Cunningham and Taylor, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Certain findings of fact disapproved and reversed.