
    In the Matter of the Application of Frank W. Hunt, Respondent, v. The Village of Otego, N. Y., Appellant, for the Appointment of Commissioners.
    Third Department,
    January 7, 1914.
    Villages — highways — establishment of grade — change of grade — damages — waiver by voting in favor of improvement.
    A grade of a street may become established by usage, acquiescence and recognition, without any formal ordinance on the part of the municipality.
    The depression of a street, from two to three feet, constitutes a change of grade within the meaning of section 159 of the Village Law, so as to entitle property owners injuriously affected thereby to damages. An abutting owner by voting at a special village election in favor of a proposition to issue bonds for the grading of a street, does not waive his right to damages.
    
      Appeal by The Village of Otego, N. Y., from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Otsego on the 11th day of November, 1912, appointing three commissioners to ascertain and appraise the compensation to be made to the respondent by reason of a change of grade of River street in the village of Otego.
    
      Tilley Blakely, for the appellant.
    
      L. F. Raymond [C. L. Andrus of counsel], for the respondent.
   Lyon, J.:

This is an appeal from an order appointing three commissioners to determine the compensation which should be made to the petitioner, respondent, on account of the depreciation of the value and use of his premises by reason of the change of grade of River street in the village of Otego, occasioned by paving the street. The appellant interposed an answer to the petition, which, so far as is material to be noticed here, admitted that the village had exclusive control and jurisdiction of River .street, but denied it had made a change in the grade of the street beyond that incident to removing inequalities in the surface, and also denied that the petitioner’s premises had been injuriously affected by lowering the grade of the street. The issues thus formed were ordered to be tried and determined, preceding the appointment of commissioners. In accordance therewith, a trial was had, the court finding that the change effected was in law a change of grade as contemplated by section 159 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64), and that it had injuriously affected the property of the petitioner and 'his interest or title therein and the use thereof. The court thereupon granted an order appointing three commissioners of appraisal to ascertain and determine the amount of damages to which the petitioner was entitled by reason of such change of grade. The1 decision of the court and granting the order were fully warranted by the evidence.

The change of grade was clearly more than a mere removal of irregularities or improvement of the street, as was the case in Matter of Bissell (57 App. Div. 61; distinguished in Phipps v. Village of North Pelham, 61 id. 442); Farrington v. City of Mount Vernon (166 N. Y. 233), and Stenson v. City of Mount Vernon (104 App. Div. 17). The change made under the Baird survey was a material change from the natural grade at which River street, between Follett street and the tracks of the Delaware and Hudson Company, a distance of several hundred feet, had been maintained for fully forty years, subject to the immaterial changes in contour which might occur as the result of the annual working of the street. In fact, the change of grade resulting from the Baird survey appears to have been the first ever officially established over this portion of River street. This change of grade in front of the premises of respondent and of adjacent owners was radical. The respondent testified that it cut the street at the ditch in front of his premises, which he must cross in order to enter his lot from the pavement, about thirty-one inches at the northerly line, thirty-five inches opposite the center of the lot and thirty-seven inches at the southerly line, while the testimony of the surveyor placed the depression at seventeen, twenty-one and twenty-three inches respectively, taken at the crown or center of the road. The authorities amply support the holding of the court that this cutting of the street affected a change of grade for which property owners injuriously affected thereby were entitled to be awarded compensation. Where a change of grade is not a mere correction of irregularities existing before the street was paved, it constitutes a change of the general grade. (Matter of Stillman v. Village of North Olean, 142 App. Div. 300.)

A prior formal establishing of a grade was not necessary in order that the change under the survey should constitute a change of grade. A grade of a street may become established by usage, acquiescence and recognition without any formal ordinance on the part of the municipality. (McCall v. Village of Saratoga Springs, 29 N. Y. St. Repr. 699; Bartlett v. Village of Tarrytown, 55 Hun, 492; O’Reilley v. City of Kingston, 114 N. Y. 439; Whitmore v. Village of Tarrytown, 137 id. 409; Folmsbee v. City of Amsterdam, 142 id. 118, 125.) That the grading of River street' to conform to the Baird survey effected a change of grade within the meaning of section 159 of the Village Law was fully established by the evidence. Further objection is made to the affirmance of the order appealed from upon the ground that by voting at a special village election in favor of the proposition authorizing the trustees of the village to issue its obligations for the purpose of paying in part for improving Biver street by grading and paving it, the respondent thereby assented to the change of the grade of the street. Subdivision 2 of section 159 provides: “ No person or property owner shall be entitled to recover any damages who shall in writing request or assent that the said grade of any such street shall be changed or altered.” The appellant contends that the respondent, by placing an X mark opposite the word “Yes” upon the ballot voted by him, thereby assented in writing to the change of grade, and hence is not entitled to recover damages. The clause at the end of section 159 to the effect that subdivision 2 shall not apply to the change of grade of streets, highways or bridges by village authorities, 'would seem to dispose of this contention as having no application in. a case like the present where concededly the village has exclusive control and jurisdiction of the streets or bridges therein and may, and in fact did, change the grade thereof.

The order appealed from must he affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  