
    Adam Danner, Plaintiff, v. New York and Harlem Railroad Company and New York Central and Hudson River Railroad Company, Defendants.
    (Supreme Court, Westchester Special Term,
    July, 1911.)
    Highways — Obstructions, encroachments and unauthorized use of highways — Obstructing highway by abolishing railroad grade crossing — Powers of Public Service Commission. ■
    Nuisance — Nature of public and private nuisances and liability therefor — Authority of law — Obstructing highway by abolishing railroad grade crossing.
    Railroads and railroad companies — Construction, equipment and maintenance— Crossing streets and highways: Right to obstruct highway by abolishing grade crossing: Restoring and maintaining highway.
    The Public Service Commission, under section 91 of the Railroad Law, has power to make an order directing a railroad company to close a highway or divert travel to another highway in order to eliminate a railroad crossing, by removing a bridge in-a street and building an embankment across the street; and the work done by the railroad company in obedience to such an order cannot be regarded either as an unlawful obstruction of the street or an actionable nuisance.
    The effect of such an order is to relieve the railroad company from liability to an adjoining landowner for any damages on account of the closing of the street or the removal of the bridge.
    The remedy of the adjoining landowner is by an appearance and protest at the duly noticed public .hearing before the Public Service Commission, and thereafter by an appeal from its decision to the Appellate Division of the Supreme Court.
    The provision of section 21 of the Railroad Law, requiring railroads to restore streets to their former state, has no application to such a case.
    
      Action for an injunction to abate an alleged public nuisance.
    J ames H. Hunt,. for plaintiff.
    Alexander S. Lyman (George H. Walker, of counsel), for defendants.
   Tompkins, J.

The plaintiff’s property is hounded on the north by an old public highway known as Hunt’s Bridge road, sometimes called Hile Square road, and on the west by the Bronx River road, all in the city of Yonkers. The Hunt’s Bridge road runs in a westerly direction to the Bronx river, the center of which is the dividing line between the cities of Yonkers and Mount Vernon; and, prior to the commencement of this action, there was a bridge over the Bronx river, known as Hunt’s bridge, which connected the Hunt’s Bridge road in the city of Yonkers with a public highway known as Oak street in the city of Mount Vernon. In other words, the Hunt’s Bridge road and Oak street were one and the same public highway, and Hunt’s bridge was a part of it, that part of the road lying west of the Bronx river being known as Hunt’s Bridge road, and the part lying east of the Bronx river, and in the city of Mount Vernon, being known as Oak street.

The plaintiff used a part 'of his property for the purpose of manufacturing heavy machines, and in carting them used heavy trucks upon this highway and the bridge known as Hunt’s bridge across the Bronx river. In January and February, 1911, the defendant the Hew York Central and Hudson River Railroad Company, which is the lessee of the Hew York and .Harlem Railroad Company, operating a double track steam railroad through the city of Mount Vernon, destroyed Hunt’s bridge and constructed a new railroad bed across Oak street east of the Bronx river, and thereby obstructed what had been' Oak street, and prevented the plaintiff from crossing the Bronx river from Hunt’s Bridge road; and this action is brought for a mandatory injunction, compelling the defendants to abate the alleged nuisance and remove the obstruction from the said alleged public highway and restore Hunt’s bridge.

Ho damages are asked for in this action, although evidence was given on the part of the plaintiff to the effect that the plaintiff’s premises were materially injured and the value thereof substantially lessened by the defendant’s work in removing Hunt’s bridge and obstructing what was formerly known as Oak street. It appears that, on September 12, 1907, the Public Service Commission, on the joint petition of the Hew York Central and Hudson River Railroad Company and the city of Mount Vernon, made a.determination and order which reads in part, as follows:

That the Oak Street grade crossing of the Hew York and Harlem Railroad Company (leased to and operated by the Hew York Central and Hudson River Railroad Company) in the City of Mount Vernon shall be changed from grade, and that said street shall be carried under said railroad in an under-crossing to be constructed under a changed line of said railroad; said under-crossing of said changed line of said railroad to be not in the present line of the street, but at a point a short distance north of the present line of said street as shown on blue print plans (applicant’s exhibit Ho. 2),- the object being that Oak Street shall be carried on said changed line of said railroad in a practically straight line to meet Sherwood Avenue, Yonkers, the said point of under-crossing of said changed line of said railroad to be located- about three hundred and fifty feet west of the existing grade crossing by Oak Street of the existing line-of railroad.”

The effect of this order was to authorize and direct the defendant to eliminate its grade crossing at Oak street and close Oak street, from its railroad track to the westerly end thereof, which was the center of the Bronx river, and the center of Hunt’s bridge, and to make a new highway under its railroad track near the old Oak street grade crossing, and extending in a westerly direction to Sherwood avenue in the city 'of Yonkers, which new highway is a substitute for Oak street and Hunt’s bridge.

It seems that, under section 91 of the Railroad Law, the Public Service Commission has power to make such an order and to direct or authorize a railroad company to close a highway, or divert travel to another highway, where it is necessary to enable a railroad company to eliminate grade crossings. Matter of Terminal Railway Company, 122 App. Div. 59. The highway between the Bronx river and the railroad. track which plaintiff formerly used, and across which the defendant has constructed its new railroad bed, has, therefore, been discontinued in a manner provided by law, and is no longer a public highway, and hence the defendant’s work thereon cannot be regarded as an unlawful obstruction, or an actionable nuisance. I think that the order of the Public Service Commission, authorizing the work to be done by the railroad company, relieves it from liability to the plaintiff for any damage on account of the closing of the said Oak street or the removal of Hunt’s bridge. There seems to be no provision in the statute for the payment of damages to the owner of property adjoining on a street that has been discontinued and closed in this manner, or by reason of a change of grade made in a public highway, under such an order of the. Public Service Commission ; and hence the plaintiff is without, a remedy, even though his property may have been seriously injured by the closing of Oak street.

The Bronx river and the point from which Oak street has been closed by the defendant under the said order of the Public Service Commission is about 300 feet west of the defendant’s railroad track; and the question as to how far from a railroad crossing a public highway may be legally closed or the grade thereof changed by order of the Public Service Commission has never been passed upon by the courts so far as I can find. Under the decision in the Matter of Terminal Railway Company, 122 App. Div. 59, the power of the Public Service Commission in this respect seems to be quite general and very broad; and the exercise of that power under the statute is only subject to review by the Appellate Division and the Court of Appeals. So it seeins to me- according to the letter of the law that the plaintiff’s remedy in the first instance was by an appeal from the determination of the Public Service Commission.

It appears without dispute that all of the work that has been done by the defendant, the New York Central" and Hudson River Railroad Company, in the destruction of Hunt’s bridge and the building of its embankment across Oak street, was within the authority conferred upon it by the said order of the Public Service Commission and that such work was necessary to carry out .the direction of the order; and the question, therefore, now is, how far the Public Service Commission may go in the making of an order authorizing and directing a change of grade and the elimination of public streets incidental thereto, and whether the only redress of an injured property owner adjoining such a public highway is by an appeal from the determination of the Public Service Commission.'

The plain tiff insists that section 21 of the Railroad Law is applicable to this case. That section reads as follows: “'Every railroad corporation which shall build its road along, across, or upon any stream, water course, street, highway, plank-road, or turnpike, which the route of its road shall intersect or touch, shall" restore the stream or watercourse, street, highway, plank-road or turnpike, thus intersected or touched, to its former state, or to such state as not to have unnecessarily impaired its usefulness.”

That statute cannot be made to apply where the railroad corporation’s work is done under and pursuant to a proper order of the Public Service Commission. In the case. of O’Brien v. New York Central & Hudson River Railroad Company, cited by plaintiff’s counsel, there had been no order of the Public Service Commission authorizing the closing of the public streets involved therein.

Section 91 of the Railroad Law, as it has been interpreted and construed by the Appellate .Division of the Supreme Court and the Court of Appeals in Matter of Terminal Railway Company, supra, seems to give the Public Service Commission power to make such an order as was made in this case; and thereby the defendant the New York Central and Hudson River Railroad Company was authorized to do all of the work that the plaintiff now complains of, and the plaintiff’s redress seems to have been, first, by an 'appearance and protest at the hearing before the Public Service Commission, public notice of which was duly given, and thereafter by an appeal from its decision to the Appellate Division of the Supreme Court, neither of which remedies was pursued by the plaintiff; and I must now hold, as a matter of law, that he is without remedy in this action, although I find, as a matter of fact, that the plaintiff’s real property has been damaged by the defendant’s railroad embankment across what was known as Oak street, and by the destruction of Hunt’s bridge, so that the plaintiff may now have it squarely determined by the appellate courts whether the Public Service Commission has unlimited power to order or authorize the closing of a street and the destruction of a highway bridge 300 feet or more away from the railroad crossing as a part of a grade crossing elimination plan; and whether the work so authorized can be done by the railroad company without liability to the owner of property adjacent to- such street, who suffers substantial damage thereby. Submit findings in accordance herewith.

Judgment accordingly.  