35 N.Y.S. 557 | N.Y. Sup. Ct. | 1895
A plan was inaugurated several years ago for the purpose of remedying what had come to be a serious evil in the city of Buffalo, caused by the steam railroads crossing the streets of the city at grade. After the expenditure of much time and labor, a general plan for a change of the grade crossing was adopted. It involved a very large expenditure of money, amounting to four or five millions of dollars, part of which is to be paid by the railroads and the balance by the city. The New York Central & Hudson River Railroad Company has for many years had and maintained two tracks running along the surface of a street in Buffalo known as the “Terrace.” A very large number of its passenger trains pass over these tracks daily. Plaintiff owns a valuable parcel of land abutting upon the southerly side of the Terrace, upon which are valu
It is evident that the plaintiff’s property will derive, in common with other property in the city, some advantages from the contemplated change in the grade crossings. Those seeking to reach his premises will be relieved from the danger incident to crossing the railroad tracks now upon the surface of the street. The real foundation of his complaint is that access to certain other streets will be by a circuitous instead of a direct approach. The primary purpose of this great improvement is not for the benefit of the railroad company or its patrons, or the traveling public, but is an exercise of the police power of the state for the protection of the lives and limbs of its inhabitants. The moving party in this undertaking is not the railroad company, but the people of the state. The purpose is not to subserve the railroad use or convenience. In this respect the circumstances of the case are unlike the numerous cases that have arisen and been determined in this state in respect to the liability of railroad companies to damages and injunctions by reason of the construction- of railroad embankments or elevated railroads in streets. From the nature and extent of this improvement, and in respect to its alleged injurious effects upon abutting property, there is a substantial difference in the facts and circumstances of this case and those that existed in the cases of Reining v. Railway Co., 128 N. Y. 157, 28 N. E. 640, and Egerer v. Railroad Co., 130 N. Y. 108, 29 N. E. 95. In the former case the portion of the street in front of the plaintiff’s premises was practically and substantially
The order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.