52 Barb. 276 | N.Y. Sup. Ct. | 1867
The question to be determined in this case arises as to the construction to be given to the sixth section of the act for the improvement of the Albany basin. (Laws of 1866, vol. 1, p. 1109.) By that act the contracting board were authorized, under the direction of the canal board, to enlarge the openings at the north and south ends of the basin, as proposed and laid down on a map mentioned in the first section of the act. The sixth section provided that the state,should “ not be liable for any damage to- any property, caused by the making of such improvements, but if any claim shall arise, the'same shall be paid by the city of Albany; and said city, before such work is commenced, shall give their
The object of the section in question was to improve the Albany basin; but the expense incurred under the act, which the state was bound to pay, was not to exceed the sum of $35,000. It would seem that this sum, which was to be paid by the state, would necessarily embrace all ordinary expenses which the proposed improvement rendered proper, including the payment of money for lands which might be appropriated in carrying out the enterprise. And I think that the sixth section was designed to include damages and injuries to property which were not comprehended in the other provisions of the act, and within the section of the Revised Statutes where damages for lands taken are especially provided for, and are to be assessed by appraisers appointed for that purpose, (1 R. S. 5th ed. 594, § 82,) and to be paid by the canal commissioners. (1 R. S. 5th ed. 596, § 96.)
The sixth section of the act of 1866 is somewhat broader in its terms, and, as is conceded, the expression “ any damage to any property caused by the making of such improvement,” is quite comprehensive and significant. It is not restricted to damages for land taken, which are provided for by statute; nor is it confined to any specified kind of damages. If this section was intended merely to provide for a deficiency in carrying out the work by the state, after $35,000 had been expended, then it would have been, doubtless, so expressed specifically. The damages arising from taking the land, came under the general statute, and the state was to pay for these, as provided in the seventh section of the act. As these were provided for, the provision of the sixth section, embracing “ any damage,” included all other injuries beyond them. If the sixth section was not designed to include damages other than for land taken, then there would appear to be no necessity for its enactment in that form. By the
The construction which I have placed upon the sixth section of the act in question is also supported, I think, by several acts of the legislature which have been passed in reference to improvements to be made- in the Albany pier and.basin, where special provisions are incorporated for the payment of damages beyond the mere value of the land. A brief reference to some of these acts may not be inappropriate. The fourth section of the “ act to improve the navigation of the Albany basin,” (Laws of 1835, chap. 163, p. 171,) provides that all “ such damages as the owner of any property taken, or in any manner injured or affected by any of the improvements contemplated,” shall be assigned to the owner. The second section of chapter 139, Laws of 1836, page 87, an act of a similar character, provides for the assignment of damages sustained by the
It is suggested that the case at bar is not distinguishable from that of Radcliffe v. The Mayor of Brooklyn, (4 N. Y. Rep. 193,) where it was decided that where a municipal corporation, under a rightful authority contained in its charter, grades and levels a street, an action will lie by an adjoining owner, whose lands are not actually taken, for consequential damages to his premises, there being no want of skill in the execution of the work, and no provision in the charter for the payment of damages of that kind. The case cited bears no analogy to the one now considered, and was decided, in part, if not entirely, upon the ground that the law made no provision for the payment of consequential damages. Here the statute has made provision which. cannot, I think, be considered otherwise than as applicable to the facts presented, and which embrace at least some portion, if not all, of the damages claimed by the plaintiffs in their complaint. The legislature has deemed it proper to provide for a certain class of injuries, while in the case cited the assessment of damages, under the law, was expressly limited to cases where land was taken for the street. Benefits were to be deducted, but damages were to be allowed for land taken. (Laws of 1833, p. 444, § 2.) After a careful examination, I think that the case cited presents no difficulty to a recovery in this action.
"While there is much force in some of the positions taken by the defendants’ counsel, as applicable to the general law for damages in similar cases, yet I think they are not available when the statute makes direct provision for damages besides, those which may arise 'from the appropriation of land for a public improvement. x
It cannot be doubted that the legislature has a perfect right to add to the measure of damages primarily allotted in such cases; and where it does so, in plain and clear language, there should be’ no hesitation in carrying out the law. In the present case it is, to my mind, very clear that the act in question was designed to embrace something more than the value of land; and while it may perhaps be questionable whether it comprehends an injury arising from loss of an easement, as being too remote, and as not naturally and necessarily proceeding from the improvement itself, I am inclined to think, without passing upon the question as to the actual extent of damages provided for, that any actual damage proved, resulting injuriously to the plaintiffs’ rights, can be recovered in this action. At least one of the causes of action alleged in the plaintiffs’ complaint, is maintainable, and the plaintiffs are, therefore, entitled to judgment on the demurrer.
The order of the special term must, therefore, be reversed, with costs of appeal, and with leave to the defendants to answer upon the usual terms.
Hogeboom, J. dissented.
Miller, Sogchoom and Ingalls, Justices.]
