
    In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo for the Appointment of Commissioners, to Ascertain the Compensation to be Paid to the Owners of and Parties Interested in Certain Lands in the City of Buffalo, which may be Injured and Claimed to be Owned by Thomas E. Cooley and Others. (Proceeding No. 43.) Grade Crossing Commissioners of the City of Buffalo, Appellants; Erie Railroad Company, Respondent, Impleaded with Others.
    
      Grade crossing commission of Buffalo — the city of Buffalo is not entitled, to damages for a change of grade —a railroad company may interpose such a defense.
    
    A railroad company liable for a portion of the damages resulting from a change of grade of a street in the city of Buffalo pursuant to the Grade Crossing Act (Laws of 1888, chap. 345), may interpose by way of answer to a petition for the appointment of commissioners to ascertain the damages alleged to have been sustained by certain property in consequence of the change of grade, any legal defense which it may have to the proceeding;
    Where the change of grade is accomplished by a viaduct built entirely by the city, the city is not entitled to recover damages for any consequential injury resulting from the change of grade to property held by it for municipal purposes, in order to compel partial contribution therefor from the railroad company — especially when the contract made between the grade crossing commissioners and the railroad company expressly reserves to the latter the right to claim compensation for injury done to its property, but reserves no such right to the city.
    
      Appeal by the petitioners, the Grade Crossing Commissioners of the city of Buffalo, from that part of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 29th day of December, 1900, refusing to appoint commissioners to ascertain the damages to two parcels of property, described in the petition herein and identified as Nos: 76 and 77, belonging to the city of Buffalo.
    When this proceeding came on for a hearing upon the motion for the appointment of commissioners to ascertain the damages sustained by the property Owners described in the petition, the respondent, Erie Railroad Company, interposed an answer alleging, among Other things, that the improvement which occasioned the damage complained of was a change of grade in Hamburg street, which change' was a public improvement intended and undertaken by the city of Buffalo for its own benefit, and it was insisted that because of this fact the city might not recover for any consequential injury done to its own property for the purpose of compelling partial contribution therefor from an interested railroad.
    While denying the respondent’s right to interpose any answer in the proceeding, the allegations thereof were conceded to be true,, and it, therefore, stands admitted that the improvement occasioning the injury to parcels 76 and 77, belonging to the city of Buffalo,, was a change of the grade of Hamburg street; that this change Was accomplished by the construction of a viaduct built wholly by. the city of Buffalo, and that the parcels of land owned by the city were held by it for municipal purposes.
    
      Spencer Clinton, for the appellants.
    
      William L. Marcy, for the respondent.
   Adams, P. J. :

That the respondent had a right to interpose by way of answer to the petition any legal defense which it might have to the proceeding is now the settled law of the State (Matter of Grade Crossing Commissioners, 166 N. Y. 69), and it, therefore, only remains to determine how much consideration shall be given to the contention of the city that it is entitled to recover compensation of the respondent for any injury done to parcels 76 and 77 in consequence of the change of the grade of Hamburg street.

For reasons which we shall proceed.tc state as briefly as possible,, we do not deem this contention well founded. In the first place, it is not in accord with the well-recognized principle of law that where the fee of a street is in a municipality, the same is held in trust, for public purposes, and the municipality can, therefore, recover no. damage either direct or consequential for any new use to which, such street may be put, unless the same is authorized by the Legislature. (People v. Kerr, 27 N. Y. 188; City of Clinton v. Cedar Rapids & Missouri River R. R. Co., 24 Iowa, 455.)

In the case first above cited the rulé is thus stated: What has. been taken from the original owners for public purposes by the= assertion of the paramount right of the sovereign power, and upon the payment of its value from public funds, and vested in a public municipal body, as a trustee, cannot be refused to the public when, it is needed for a different use.. Nor can compensation be demanded by this municipal body, in which the title to property thus acquired has been vested by such an exercise of the right of eminent domain,”' while in the latter case it was said by Chief Justice Dillon that “ it is a mistake to suppose that where the fee of the streets is in the-city in trust for the public, the city is constitutionally and necessarily entitled to compensation. the same as a private proprietor holding the fee. The Legislature might provide for such compensation, but is not bound to do so.”

In the present case it is conceded that the premises sustaining the-alleged injury are held by the city for municipal purposes, that is,, for the use of the public; that the injury complained of was occasioned by a change of the grade of one of the city streets; that this-change was accomplished by the construction of a viaduct built, entirely by the city, and that so far from there being any legislative-sanction for the city’s claim for compensation therefor, such claim is at variance with the whole tenor and spirit of the Grade Crossing Act, under the provisions of which the change of grade was-accomplished. (Laws of 1888, chap. 345, as amd. by Laws of 1890, chap. 255, by Laws of 1892, chap. 353, and by Laws of 1895, chap-1039.)

In these circumstances it would seem to require no argument to support the first proposition upon which we rest our conclusion. But there is a further reason why the appellants’ contention must fail. By the terms of the 1st section of the Grade Crossing Act (Laws of 1888, chap. 345, as amd. by Laws o_f 1892, chap. 353) any six of the grade crossing commissioners “ are authorized to enter into contracts,, from time to time, on behalf of the city of Buffalo, with any railroad company or companies * * * for the relief of the city from the obstruction of the streets of the city of Buffalo by railroads crossing the .same at grade , * *

In pursuancte of the authority thus conferred, the grade crossing commissioners entered into a written contract with this respondent and certain other railroad companies whose railroads crossed Hamburg street at grade, in and by the terms of which it was agreed that any and all damage for consequential injury to the premises, of abutting- owners- should be borne ratably by the city and the several railroads; and in the case of the respondent it was further agreed that such damage should be paid by the city in the first instance, .and that the respondent’s share thereof should be thereafter refunded in annual installments running through a period of years. It was also expressly stated in the contract that the respondent did not “waive any right or claim to compensation for .injury to any property owned by it,” or “ its right or claim to compensation for any injury caused by the work described and provided for in this contract.”

Thus it will be seen that it was within the express contemplation of the parties to this contract that the respondent should be compensated for any and all consequential injury which the change of grade, might work to its property, but it is also to be observed that there is an entire absence of any like provision respecting compensation to the city. Surely if such a provision had been within the contemplation of the parties it is altogether likely that the contract would have so expressed it, and its failure to do so is of itself a complete answer to the appellants’ contention. .

We think the order appealed from should be affirmed.

All concurred.

Order affirmed,- with' costs.  