City of Corning, Plaintiff, v. John E. O’Neil, Defendant.
(Supreme Court, Monroe Special Term,
September, 1916.)
Damages — action to recover — injuries to property—negligence — Railroad Law, § 92.
Under section 92 of the Railroad Law providing for the acquisition of “ property, rights and easements ” necessary for a change of grade, a property owner whose property fronts on the portion of the street affected is entitled among other damages to recover damages sustained during the construction of the improvement consisting of (a) injuries to his property not due to the negligence of the contractor but arising out of the nature of the work itself, and (b) to damages, except loss *572of profits in business, for interference with the use of. the property because of interruption of access, and (c) for the depreciation -of his property by reason of the cutting off of a street at the end of his property although a new route to his property is provided.
(Syllabus by the Court.)
Motion to confirm report of commissioners of appraisal in grade crossing proceeding in the city of Corning, N. Y.
The Erie Railroad Company crosses Columbia and First streets in the city of Corning at grade. Proceedings were taken under the Railroad Law (§§ 91-94) to determine the necessity for the elimination of the grade crossing and the construction of an underground crossing in its place. The public service commission determined that such elimination was neces-' sary and that the underground crossing was required. The improvement was constructed and a claim was then filed by the defendant for damages resulting from the improvement. First street runs east and west and Columbia street north and south and defendant is the owner of a lot fronting on Columbia street. The improvement by closing Columbia street at the north line of his property left his property which was used as residence property without access to First street to the north as formerly. Another route to First street was provided to the south of his property. Ah award was made to him of $150 but the commissioners of appraisal did not make any allowance for the closing of Columbia street or for any obstruction or interference with access to it or for damages sustained while the work was in progress. For these reasons the confirmation of the report of the commissioners which came up upon this motion was opposed by defendant.
*573Justin V. Purcell, for city of Corning.
Cheney, Phillips & Greene, for Erie Railroad Company, for motion.
James O. Sebring, opposed.
Rodenbeck, J.
The report of the commissioners of appraisal is set aside for the reasons stated in the case of City of Corning v. Holmes, with the additional observations that while the common law in the absence of a statute authorizing such damage does not allow a recovery for interference, with access by cutting off a street where another reasonable access is available or provided (O’Brien v. New York C. & H. R. R. R. Co., 148 App. Div. 733; Egerer v. New York C. & H. R. R. R. Co., 130 N. Y. 108, 114; Story v. New York El. R. R. Co., 90 id. 122, 186; Reis v. City of New York, 113 App. Div. 464; Coster v. Mayor, 43 N. Y. 399; Kings County Fire Ins. Co. v. Stevens, 101 id. 411; Fearing v. Irwin, 55 id. 486), the statute in this case by its language or a fair implication therefrom authorizes the payment of such damages. The cutting off of Columbia street has depreciated the value of the O’Neil property and there is no reason why a construction should be given to the statute which imposes this loss upon him. The cutting off of the street is a necessary part of the improvement and his right to the continuation of the street is a property right for which compensation was contemplated by the language of the statute. He is also entitled to damages sustained during the progress of the work. The report of the commissioners should be set aside and referred back to them with the costs of this motion.
Ordered accordingly.