Rigney v. New York Cent. & H.R.R. Co.
| Decision Date | 18 January 1916 |
| Citation | 217 N.Y. 31,111 N.E. 226 |
| Parties | RIGNEY et al. v. NEW YORK CENT. & H. R. R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by James J. Rigney and others against the New York Central & Hudson River Railroad Company. From an order of the Appellate Division (161 App. Div. 187,146 N. Y. Supp. 395), reversing a judgment dismissing the complaint on the merits and granting a new trial, defendant appeals. Order of Appellate Division affirmed.
Robert E. Whalen, of Albany, for appellant.
William Dewey Loucks, of Albany, for respondents.
The action was brought to recover damages resulting to the plaintiffs from changing the grade of Columbia street, in the city of Rensselaer, upon which street the lands of the plaintiffs abut. For a period of 38 years before the change of grade complained of, Columbia street was carried over the defendant's railroad tracks on a bridge, and there was a slight grade or elevation in the street as it approached the railroad bridge in front of the plaintiffs' land, which lies next to the defendant's railroad tracks. The approach to the bridge did not occupy the whole width of the street, and there was a space about 18 feet wide in front of, and on the same level as, the plaintiffs' land, which afforded easy access thereto.
By its charter (Laws 1897, c. 359) the common council of the city of Rensselaer was given charge and control of the streets of the city as commissioners of highways, with power to direct the filling in, leveling, and grading of streets, and the construction and maintenance of bridges therein. In 1909 the bridge over the defendant's railroad tracks was out of repair and unsafe for public travel, and the common council of the city directed the railroad company to repair the same. The railroad company prepared plans for the reconstruction of the bridge with a clearance of 16 feet 2 inches above the top of the rails. Two sets of plans prepared by the company were disapproved by the common council as not sufficiently clearing the railroad tracks. Thereafter, and in 1910, the defendant submitted plans for the reconstruction of the bridge with a clearance of 21 feet above the rails, and with a span 46 feet longer and 10 feet wider than the old bridge. These plans were approved by the common council of the city, and a contract under seal between the defendant and the city was made which authorized the defendant to reconstruct the bridge in the street, and which provided, among other things, as follows:
‘The party of the second part [the railroad company] expressly covenants and agrees that in the event of any damage resulting from the ‘work’ as it progresses, or thereafter, as a result or in consequence thereof, or from any matter or thing connected therewith, arising therefrom, to any person or property, including damage resulting from change of grade of street, being approaches to said bridge, it will pay and liquidate the same at its own expense and assume the liability therefor, and in the event of any action or actions, proceeding or proceedings, of any kind or description being brought against the city of Rensselaer, by reason of, or on account of, or growing out of said ‘work,’ or its construction, or to prevent the performance thereof, or anything connected therewith, and the said party of the second part will at its own expense defend the same, and will pay any judgment or award recovered therein, and will in all respects fully indemnify and save harmless the said city, its officers, agents, and representatives, from any and all costs, expenses, payment of judgment, to be recovered or incurred in such action or actions, proceeding or proceedings.'
Pursuant to this contract the defendant reconstructed the bridge over its tracks, making the same longer and wider than the old bridge, and also about 5 feet higher, to give the clearance contemplated by the plans. The defendant also, as provided by the plans, placed an embankment in front of the plaintiffs' premises on Columbia street, occupying the whole width of the street, and extending along the street for a distance of about 265 feet up to the new bridge. The embankment was 15 feet high in front of the plaintiffs' property, and it obstructed and very seriously interfered with the access thereto from Columbia street, and caused material damage to the plaintiffs.
The plaintiffs raise no question as to the common-law rule that the owner of land abutting on a street or highway is not entitled to compensation for a change of grade therein when lawfully made for a public purpose. radcliff's Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357;Conklin v. N. Y., Ont. & W. Ry. Co., 102 N. Y. 107, 6 N. E. 663. Their claim against the defendant railroad company is: (a) That they are entitled to compensation under section 81 of the Rensselaer city charter; (b) that the change of grade was not made for a public purpose, but for the sole benefit of the defendant, a private corporation; and (c) that the defendant is liable to the plaintiffs under the provisions of its contract with the city to pay damages for the change of grade in Columbia street.
[1] Section 81 of the charter of the city of Rensselaer (Laws 1897, c. 359) has not the legal force asserted by the plaintiffs, and is not sufficient to impose liability for a change of grade in the street contrary to the provisions of the common law. Section 81 provides as follows:
‘Whenever the common council shall intend to lay out, alter, widen, extend, contract or discontinue any street, lane, alley, highway or public grounds in said city, and the lands of any person or corporation, or any right or easement therein will be necessary for that purpose; and whenever the common council shall intend to acquire lands, right or easements therein for any other purpose mentioned in this act, they shall’
-proceed as in the charter expressly provided and may take and appropriate property as required, upon making compensation therefor. It seems clear that this is only a delegation to the municipality of the power of...
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