
    The People ex rel. Lawrence Dole, Relator, v. The Town Board of The Town of Hamburg, Erie County, New York, Respondent.
    (Supreme Court, Erie Special Term,
    April, 1908.)
    Abutting owners—Remedies of abutting owners, etc.— Highway crossings by railroads — Mandamus to municipality to condemn easement.
    Mandamus — Mandamus against public officers — Highway officers — To condemn easement required for highway crossing by railroad.
    Where, by order of the State Board of Railroad Commissioners, a street is elevated to enable a railroad to cross under it and such crossing substantially impairs the right of access by an abutting owner to the street, as theretofore enjoyed by him, he is entitled to have the town institute proceedings to condemn the easement thus affected under the provisions of section 0'3 of the Railroad Law; and, where the town refuses to institute such proceedings, he is entitled to a peremptory writ of mandamus commanding the town board to institute the same.
    Motion for a peremptory writ of mandamus.
    Thomas R. Stone, for motion.
    Edward H. Letchworth, opposed.
   White, J.

The relator is the owner and occupant of premises situated in the town of Hamburg. His dwelling-house on said premises fronted on Clark street, a public highway, which is crossed by the Buffalo and Susquehanna Railway Company. By order of the State Board of Railroad Commissioners Clark street was elevated to enable the railroad to cross under it, which it does. This crossing made in that manner substantially impaired the right of access t-o the street as theretofore enjoyed by the relator. He made a claim for damages against both the town and the railroad and both repudiated it. He then requested the-town to institute proceedings to condemn the easement thus affected, and it declined to do that.

No adjudication in this State has been referred to by counsel, nor do I know of any, which is decisive of the question involved in this motion. The views of - Judge Haight, in that part of his opinion construing section 63 of the Railroad Law, in the case of Smith v. Boston & Albany Railroad Company, 181 N. Y. 132-140, which was concurred in hy Judges Bartlett and Vann, to my mind accords with justice. I am clearly of the opinion that the claim of the relator on the merits is a valid one under section 63 of the Railroad Law, and that he is invoking the proper remedy for its enforcement.

Motion granted, with fifty dollars costs to the relator.

Motion granted, with fifty dollars costs to relator.  