
    BUCHHOLZ v. NEW YORK, L. E. & W. R. CO.
    (Supreme Court, General Term, Second Department.
    December 12, 1892.)
    Railroad Crossings—Alteration—Rights op Abutting Owner. Plaintifl owned property facing a street near where it crossed defendant railroad company’s tracks. Defendant changed the direction of the street before it reached plaintiff's property, so that it crossed the track about 150 feet south of the old crossing, which was discontinued and rendered impassable. The change was made entirely on defendant’s land, the object being to avoid the old crossing, which was in defendant’s yard, and was considered dangerous; and the alteration was accepted by the municipal authorities. The street in front of plaintiff’s premises was kept open as before, his access to his property thereby remaining the same, and his light and air were unaffected. Held, that plaintiff was not entitled to a mandatory injunction compelling defendant to restore the former crossing, and that he could not recover for damages claimed to have been sustained by the taking up of such crossing.
    Appeal from special term, Orange county.
    Action by Charles W. Buchholz against the New York, Lake Erie & Western Railroad Company for a mandatory injunction to compel defendant to restore a grade street crossing, and to recover damages alleged to have been sustained by the discontinuance of such crossing. From a judgment for defendant, plaintiff appeals. Affirmed.
    Argued before DYKMAN and PRATT, JJ.
    C. E. Cuddeback, for appellant.
    Lewis E. Carr, for respondent.
   DYKMAN, J.

The plaintiff owns a house and lot and ground in the village of Port Jervis, on the north'side of Main street, and 54' feet' west of the tracks of the defendant’s road. Prior to March, 1890, Main street continued on east, past the plaintiff’s property, across the railroad, on the same grade, and then made a short curve to the south, and continued on an ascending grade to and over the Delaware & Hudson canal. In March, 1890, the defendant changed Main street by turning it to the south before it reached the plaintiff’s house, and then turning it in a sharp curve to the east, and carrying it over the railroad on a bridge about 150 feet south of the old crossing, and from .the bridge east, until it again struck the street as it formerly was." Subsequently the defendant tore up the planking at the old crossing, and rendered the street impassable from the railroad to the point where the new street runs into the old one, but left it open from the plaintiff’s house west to the point where the street was turned to the south. The change in the location of the street was entirely upon the land of the defendant, and the old crossing was also in the defendant’s yard, and was considered dangerous. The alteration was made to escape the danger of the old crossing. The plaintiff has entire freedom of access to his property, and the light and air are undiminished and unaffected; so that none of his property rights are invaded. Upon the application of the defendant, the trustees of the village of Port Jervis adopted and ratified the alteration of Main street made by the defendant, and accepted the new bridge and its approaches in lieu of the former grade crossing, and Main street, easterly from the old crossing, to its intersection with the alteration, was discontinued. The trial court found that Main street, in front of the plaintiff’s premises and west of them, was open as before, and that the plaintiff had the same freedom of access to his property from the street as before, and that his light and air were unaffected. This suit was instituted to procure a mandatory injunction which would require the defendant to restore the old grade crossing of the railroad, and to recover damages.

Under the statute of this state, railroad companies may locate their lines so as to intersect and cross highways, and, as a condition of such privilege, a duty is imposed to restore the highway to its former state, or to such state as not necessarily to have impaired its usefulness. Raws 1850, c. 140, § 28, subd. 5. That statute legalized the crossing of highways by railroads, and devolved upon them the burden and expense of restoration. A discretion is reposed in the companies to select, in the first instance, the place of crossing, and determine the mode of restoration, subject to judicial review, at the instance of the commissioners of highways of towns or municipal authorities of villages. Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. Rep. 657; Green v. Railroad Co., 58 N. Y. 152. Section 24 of the law already-quoted conferred the privilege upon the railroad companies to carry the highway under or over their tracks, as they deemed most expedient. The requirement for the restoration of the highway was designed for the protection of the public, and the performance of that duty must be enforced , in the interest of the public, by indictment or mandamus, or by civil action by the commissioners of highways, under chapter 255 of the Laws of. 1855. People v. New York Cent. & H. R. R. Co., 74 N. Y. 302.

In the process of restoration .of the highways by the railroad companies, they stand in the position of highway commissioners, and if they act with prudence they are entitled to the same immunity for damages to property bounded by the highways and streets as those officers. Conklin v. Railway Co., 102 N. Y. 112, 6 N. E. Rep. 663; Bellinger v. Railroad Co., 23 N. Y. 42; Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536. The plaintiff here claims no private rights in Main street beyond those of an. abutting owner thereon, and he holds those in common with the general public. Such rights cannot be enforced in any private action. In the exercise of a right conferred by statute therefor, the defendant carried the street over its tracks, and restored it to its former state of usefulness, in a manner which met the approval of the municipal. authorities, and which neither invaded nor subverted any property rights of the. plaintiff. The celebrated case of Story v. Railroad Co., 90 N. Y. 122, teaches no doctrine beneficial to the plaintiff. That case wrought no change in the law of this state, respecting surface railroads of any kind. Fobes v. Railroad Co., 121 N. Y. 517, 24 N. E. Rep. 919. ■ It only applied settled principles to a new state of facts. In that case a structure had been erected in mid air, which prevented the inflow of light and air to the building of the plaintiff, who was an abutting owner; and the court held that such an owner had an easement appurtenant to his land fronting upon the street for the purpose of receiving light- and air, and any interference with such rights-was deemed taking “property,” within the meaning of the constitution. The plaintiff here has suffered no privation of light, air,, or access to.his-property. Main street is merely altered. The Story Case left unquestioned and undisturbed the Kerr Case, 27 N. Y. 188, and the doctrine there enunciated; and that case fully sustained the action of the defendant. It; was decided in the Fobes Case, cited above, that a railroad company duly authorized to operate its road and lay its tracks upon the surface of a city street, under a license from- the city, took no property of one-who-owned. land adjoining the street bounded' by its exterior line; and, further, that there was no difference in that respect between a railroad, operated by steam and one- operated1 by horse power. All property is-held by a tenure more or less subject'to the. vicissitudes incident to the-progress and improvement dictated5 by public necessity; and inconvenience, or even decrease in value, incident to the changes in streets and highways, where no property rights are invaded; are not- such injuries • as furnish a cause of action either for damages or an injunction. In the-case of Coster v. Mayor, etc., 43 N. Y. 413, the claim of.the plaintiffs.was-that the best approach .to their ■ property had been removed, and; damage had resulted thereby, but it" was held- that- the damage was too indirect and remote. Hier v. Railroad Co., 40 Hun, 310; The change in Main street was an alteration only, and opens no new route of- travel. The street is the same, and makes a turn to the .south before reaching the property of the plaintiff, instead, of a sharp curve to the right’ after-it passed his property and the railroad track. People v. Jones, 63 N. Y. 310; This careful examination demonstrates the correctness.of the-judgment-rendered, and . the .same should be affirmed, with costs;  