117 N.Y.S. 108 | N.Y. App. Div. | 1909
The claim was for damages occasioned by the construction of an embankment in the center of the highway in front of claimant’s premises, so as to enable the public to cross Fish creek by a bridge built by the State in the construction of the barge canal. The embankment is supported, by perpendicular concrete walls, varying from four to eight feet above the' former grade of the highway, and extending the' whole length of the street line of the claimant’s premises. The claimant owns no part of the soil of the highway, and between the retaining wall on the easterly side of the embankment and the claimant’s westerly line is a space six to seven feet wide.
The principal question for our determination relates to the right' of the claimant to recover the damages caused by the raising of the grade of the highway tr meet the grade of the bridge. The law is well settled in this State that the owner of a lot abutting on a street or highway has no remedy or redress for an injury to his property, however serious, caused by a change of grade, provided only that the change of grade is made. under lawful authority. This, it is held, is not a taking' of private property, and whatever detriment the improvement may be to the abutting owner, is damnum absque injuria. (Radcliff’s Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195 ; Conklin v. N. Y., O. & W. R. Co., 102 id. 107; Reining v. N. Y., L. & W. R. Co., 128 id. 157; Rauenstein v. N. Y., L. & W. R. Co., 136 id. 528 ; Folmsbee v. City, of Amsterdam, 142 id. 118; Talbot v. N. Y. & H. R. R. Co., 151 id. 155; Fries v. N. Y. & H. R. R. Co., 169 id. 270.)
The learned counsel, for the claimant concedes that the State can
Without proof of negligence it is clear that a contractor or corporation acting under authority of law would not be liable to an owner of realty abutting on a street or highway for damages caused by changing the grade. It was so held in Bellinger v. N. Y. C. Railroad (23 N. Y. 42). The court said: “ Where persons are authorized by the Legislature to perform acts in which the public are interested, such as grading, leveling and improving streets and highways and the like, and they act with proper care and prudence, they are not answerable for the consequential damages which may be sustained by those who own lands bounded by the street or highway.” The samg doctrine was asserted in Uline v. N. Y. C. &. H. R. R. R. Co. (101 N. Y. 98), where the crossing of a city street had been followed by a change of grade of the highway in front of plaintiff’s, premises and the court held that if the railroad company changed the grade by a valid authority the plaintiff could not recover.
That an abutting owner is not entitled to recover the consequential. damages he may have sustained by reason of a change in the
All concurred,
Judgment reversed and proceedings dismissed, without costs.