
    In the Matter of the Petition of the New York Central Railroad Co., to Acquire Title of the Land of Patrick H. Judge.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1887.)
    
    1. Railroad—Acquiring land under Laws 1881, chap. 258—Liability of RAILROAD.
    The owner of the land sought to be acquired by the railroad company, under Laws 1881, chapter 258 (an act for the improvement of the Broadway railroad crossing in the city of Albany), had, upon the receipt of the amount of the award against said city, discharged said "‘city from such damages as it is required to pay by said act.” Held, that the railroad company, on taking the land in question, was only liable for the value of the land; that the award paid by said city covered all other damages which could be recovered under Laws 1850, chapter 140.
    2 Same—Measure of damages when land taken is a street—Laws 1850, chap. 140.
    The proper compensation, under Laws 1850, chapter 140, in case the land proposed to be taken is situate in a street or highway, the fee of which is in the owner of the adjoining land, is, first, the full value of the land taken; second, a fair and adequate compensation for all the injury the owner has sustained-and will sustain by the making of the railroad on his land. For this purpose it is proper to ascertain and determine the effect the conversion of the street into a railroad track will have upon the owner’s land Under Laws 1881, chapter 258, the latter is for the city to adjust. Following Henderson v. H. T. O. S. Í?. Go., 78 N. Y., 428.
    This was a proceeding by the railroad company to acquire title to a strip of land in the street called Broadway, in the city of Albany, of which Patrick H. Judge, who was the owner of the adjoining lot fronting upon the easterly side of the street, had title, subject to the public easement. The proceeding was under the general railroad act, as affected by chapter 258, Laws 1881, entitled “An act for the improvement of the Broadway railroad crossing in the city of Albany.” The tracks of the railroad of the company at the time of the passage of the act occupied a portion of the street and the company had previously acquired title to the land of Mr. Judge in the street adjoining that now sought to be acquired. The railroad crossed the street upon grade. The object of the act of 1881 was to authorize the company to carry its railroad tracks upon a bridge over the roadway of the street, and so to lower the grade of the street as to properly construct the highway beneath the railroad bridge. Also to apportion the expenses of the improvement between the city and railroad company.
    The third section of the act of 1881 authorizes the railroad company to acquire title under the provisions of the general railroad act.
    The fourth section of the act provides: “The cost and expenses of changing the grades of said street and said tracks and of the improvements in said crossing, and of acquiring title to any lands and tenements taken therefor, authorized by this act, shall be paid and borne by said railroad company. The said railroad company, however, shall not be liable to pay any compensation which the owners or occupants of adjoining property may be entitled to, or damages which they may suffer by reason or on account of such changes of grade or improvement; but the same shall be paid and borne by the city of Albany, which shall be liable therefor.”
    _ The act also provides for the appointment of commissioners who were to determine what damages were to be paid or compensation made to claimants by the city.
    The railroad company finished the improvement in 1882. About 400 square feet of land in the street to which Mr. Judge had title were appropriated. The result of the improvement was seriously to impair the value of his adjoining lot.
    In 1883 Mr. Judge instituted proceedings under the act of 1881 to obtain that part of the damages or compensation which the city ought and was liable to pay him. The commissioners awarded him $5,591.13. This sum was paid him by the city. Upon its payment he executed and delivered to the city a release which recited: “It being the intent of this instrument only to discharge the city of Albany from such damages as it is required to pay by said act,” but “not discharging or in any way interfering with any claim that the undersigned has against the New York Central and Hudson River Railroad Company for lands * * * taken * * "x" or for making said improvement, or damages consequent upon, or caused by the taking of said lands, or any claim which is required by said act to be paid by said company, or for which it is liable.”
    The railroad company afterwards instituted this proceeding. Upon the hearing before the commissioners, evidence of the proceedings had before and award made by the commissioners in the proceeding against the city and of the release of the application was introduced. The commissioners made an award of five dollars. In their report the commissioners recite that the evidence produced before them tending to show depreciation in value of the residue of the premises of said Judge was not considered by them nor included in their estimate of damages. Such evidence was given. Mr. Judge appeals from the order confirming the award and report.
    
      A. J. Parker, for app’lt; M. Hale, for resp’t.
   Landon, J.

—It is evident that the commissioners in this proceeding regarded Mr. Judge’s title to a small piece of land, out in the street in front of his lot, as having a merely nominal value, and that he had already received from the city in his proceeding against it under chapter 258, Laws 1881, all the other compensation which he could lawfully claim.

He has acknowledged the receipt from the city of all the compensation the act required the city to pay, and in this proceeding he has been awarded the full value of his title to the land taken. By recourse to both the city and company he ought to obtain the same measure of compensation, which would have been his due from the company under the general railroad act, if the act of 1881 had not been interposed to apportion the charges between the city and company.

Section 16 of the general railroad act (chapter 140, Laws 1850), requires the commissioners to ascertain and determine the compensation which ought justly to be made by the company to the owner or owners of the real estate to be appraised by them.” The proper compensation in case the land proposed to be taken, is situate in a street or highway, the fee of which is in the owner of the adjoining land, is, first, the full value of the land; second, a fair and adequate compensation for all the injury the owner has sustained and will sustain by the making of the railroad on his land; and for this purpose it is proper to ascertain and determine the effect the conversion of the street into a railroad track will have upon the owner’s land. Henderson v. The N. Y. Cent. R. R. Co., 78 N. Y., 423.

Assuming five dollars to be the full value of the land taken, one item of damage is covered. The city paid him $5,691.13. This is defined by section 4 of the act to be the “ compensation the owners of the adjoining property may be entitled to.”

These two items seem to cover the entire case; but in order to adapt the measure of damages to this particular work, the section proceeds—‘ ‘ or damages which they (the adjoining owners), may suffer by reason or on account of such changes of grades or improvements.”

Before this improvement was made both highway vehicles and railroad cars passed upon the surface of the street; after the improvement the cars passed upon the bridge. If, as is claimed, the cars upon the bridge pass nearer the adjoining lot than before, and shake it and the buildings upon it more than before, the damages resulting therefrom were in the measure thereof charged upon the city.

The commissioners in this proceeding properly refused to consider the evidence tending to show depreciation in the value of the residue of the premises. The commissioners on the part of the city were charged with the duty of considering that evidence, and it was presented to them. The substantial award made by them indicates that they made the proper award upon that account. But independently of the amount of their award, we must assume that when Mr. Judge elected to submit his case to them under the act, he submitted all the claim he had for damages to' the adjoining property, and as these would be slight if the adjoining property was not depreciated in value, the depreciation was also submitted.

The distinction which is sought to be drawn by the claimant between damages caused by the improvement upon the land in the street in front of his lot and the damages caused by separating the title of the part covered by the improvement from the title to the part retained by the claimant, does not strike us as substantial enough to support an additional item of damages.

We think the claimant has had an award made in his favor for every item of damages to which he is entitled under the general railroad law and under the act of 1881.

The order appealed from should be affirmed, with costs, as in a special proceeding.

Learned, P. J., and Williams, J., concur.  