9 N.Y.S. 170 | N.Y. Sup. Ct. | 1890
Warren street and Lake avenue were for several years prior to 1887 public highways, and cared for as such by the village authorities.. Their grade was the natural grade of the surface of the earth, except as slight inequalities in the natural surface had been removed by throwing the earth-from the higher to the lower places. The petitioners had built their houses on the streets while the natural grade continued. In 1887 the village authorities established a different grade from the natural one, and changed the surface of the street accordingly, making excavations in so doing, as the petitioners allege, to their injury. Chapter 113, Laws 1883, as amended by chapter ter 281, Laws 1884, authorizes the appointment of the commissioners “ whenever the grade of any street, * * * in any incorporated village in this-state, shall be changed or altered” to the injury of the owners of houses already existing on adjoining lots. The village contends that this means a grade previously ordered and made, and not the natural grade, which has been acquiesced in without express order or adoption; and that the action of the authorities in 1887 was the first establishment of the grade, and not a change or
All concur.