
    In the Matter of the Application of Viola W. Myer, Respondent, for a Writ of Mandamus, v. Robert B. Adam and Others, as Grade Crossing Commissioners of the City of Buffalo, Appellants.
    
      Buffalo grade crossing commissioners — request by an owner that they take testimony and apply for the appointment of commissioners of appraisal — mandamus requiring them to take testimony — their decision not binding on fhe appi'aisers — the statutory remedy is exclusive.
    
    Where an owner of property, abutting oñ a street, the grade of which was changed by the grade crossing commissioners of the city of Buffalo, appointed under chapter 845 of the Laws Of 1888, amended by chapter 255 of the Laws of 1890, requests the grade crossing commissioners to apply to the Supreme Court for the appointment of commissioners to appraise the damages alleged to have been sustained by such owner in consequence of the change of grade, and the grade crossing commissioners, after viewing the property, deny the application and refuse to hear the testimony of witnesses produced by the owner as to whether she has suffered damages, a writ of mandamus will issue, requiring the grade crossing commissioners to hear the testimony of such witnesses before determining whether they should not apply to the Supreme Court for the appointment of commissioners of appraisal.
    
      Semble, that the commissioners of appraisal would not be bound by the decision of the grade crossing commissioners that the abutting owner had sustained damages. 
      Semble, that the remedy, provided in the Grade Crossing Act for the inj uries resulting from the acts of the grade crossing commissioners thereunder, is exclusive. •
    Appeal by the defendants, Robert B. Adam and others, as grade crossing commissioners of the city of Buffalo, from a judgment and order of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 4th day of March, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, directing the issuance of a peremptory writ of mandamus.
    
      Spencer 0 Union, for the appellants.
    
      Adolph Bebadow, for the respondent.
   Williams, J.:

The judgment and order appealed from should be affirmed, with costs.

The proceedings were commenced to obtain a mandamus compelling the defendants to hear and consider the testimony of such witnesses as the relator should produce before them, on the question as to whether damages were sustained by the relator by reason of the change of the grade of Washington street in the city of Buffalo, and thereafter determine whether they should not apply to the Supreme Court for the apj>ointment of commissioners to assess such damages: Upon the issue raised by the alternative writ and return thereto a trial was had before the court without a jury, and a judgment and order were granted directing that the peremptory writ issue.

The trial court found that in 1896 the grade crossing commissioners changed the grade of the street in front of the. relator’s premises, raising the surface of the same at the northerly boundary thereof six feet eleven and three-fourths inches, and at the southerly boundary thereof six feet seven and three-eighths inches; that the ■brick building on the premises which encroached on the street from two to two and one-eight inches, was, in changing the grade. of the street, demolished ; the tenant occupying the same was required to vacate and paid no rent to the relator thereafter. February 2,1897, the relator presented a petition to the defendants, as grade crossing dommissioners, asking to have commissioners appointed to appraise the damages to her property. The defendants viewed the property and, on the 2d day of March, 1897, denied her application. On the 7th of May, 1900, the relator renewed her request to the grade crossing commissioners and asked them to apply to the. Supreme Court for the-appointment of commissioners to appraise her damages, and requested the grade crossing commissioners to hear the testimony of witnesses to be produced by the relator showing the damages alleged to have been suffered by her, but the grade, crossing commissioners refused to do this and on the same day wholly denied relator’s application.

Upon these facts the court decided as matter of law that under the statute known as the Grade Crossing Act (Laws of 1888, chap. 345, as amd. by Laws of 1890, chap. 255) the relator had the right to produce witnesses and such testimony as she should be advised for the purpose of showing that damages had resulted from the change of grade of the street; and that it was the duty of defendants to hear such testimony as should be offered before deciding whether they would apply for the appointment of commissioners to appraise the relator’s damage. Section 12 of the Grade Crossing Act, as amended, provides: “If the commissioners shall decide that it is necessary for the purpose of carrying out any plan or modification or alteration of a plan adopted by them, that any street shall be closed or discontinued, or that the grade of any street or portion of any street or public ground shall be changed, and that any property may be .injured thereby for which the owners or persons.interested therein are lawfully entitled to compensation, or that any land shall be taken incident to the.changes of the grade of any street, or to widen any street, or in the event that the commission shall undertake the work on the failure of the company or companies to do so, the commissioners, by their chairman, may apply to a special term of the Supreme Court for the appointment of three, commissioners to ascertain the compensation therefor to be paid to the owners of, or parties interested in, the land proposed to be taken or which may be injured.”

The trial court gave a liberal construction to this statute, but it is difficult to see how any other construction can be given to it without infringing upon the constitutional rights of the relator with reference to her property. The court did not find there was injury

to the relator’s property resulting fi’om the change in the grade of the street, for which the relator was entitled to compensation, but from the facts which were found we may well assume there was such injury, or at least such a probability of injury as to render it necessary to submit the question to commissioners appointed for the purpose of ascertaining what the damages were, if any. There could be no objection to the grade crossing commissioners, upon their own observation of the property and its surroundings, deciding that the property might be injured by the change of grade, and thereupon applying to the court for the appointment of commissioners, without taking testimony. In that event no one could be injured. When the commissioners came to act they would not be bound by the decision of the grade crossing commissioners, but might conclude that no injury had been caused for which compensation should be awarded. (Matter of Grade Grossing Comrs., 166 N. Y. 69.)

But if it 'could be said that-the grade crossing commissioners had power to decide upon .their observation that no injury to property was caused for which compensation could be awarded, and then refuse to apply for the appointment of commissioners to ascertain such compensation, refuse to investigate or take evidence offered, and arbitrarily refuse to commence the proceeding, the property owner would be at the mercy of the grade crossing commissioners, and would have no remedy whatever. Neither the city nor the railroad companies could be compelled to pay damages, except as the result of such proceeding, because neither the city nor the railroad companies caused the injury and damage. It was caused by the grade crossing commissioners, over which the city and the railroad companies had no control, and the only way to secure damages, that is, compensation for the injuries caused by the raising of the grade of the street, would be through the proceedings provided for by the Grade Crossing Act. The intention of the Legislature by the act was to provide the exclusive remedy for all damages sustained resulting from the acts of the grade crossing commissioners . thereunder. (Matter Grade Grossing Gomrs., 6 App. Div. 336.)

The right to compensation for injury to property cannot be left to the final and exclusive determination of such a tribunal as grade crossing commissioners without affecting the constitutional rights of the property owner. “ Anything that affects or limits the free use and enjoyment of one’s property, or of the easements or appurtenances thereto, is a deprivation or taking of property within the meaning of the Constitution, and the owner has the right to have a constitutional tribunal pass upon the question as' to whether he has been deprived of it, and if so, what compensation he is entitled to therefor.” (Same case last cited, and cases there cited.)

The provision of the Constitution referred to is (Art. 1, § 7): “ When private property shall be taken for any public use,'the compensation.to be made therefor, when such compensation is nót made by the State, shall be ascertained by a jury or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.” '

We think the decision under this statute by the grade crossing commissioners, certainly when against the property owner, is not final and conclusive upon the property owner, but is subject to review, and that, as said by the learned trial justice: “ The power to decide, given by a statute, unless limited' thereby, necessarily carries, with it the duty to investigate, in' the manner and by the methods usually employed for ascertaining any fact or facts to be judicially declared; also insures to the party or parties interested in such decision the. right to such a record, unless otherwise provided, as will enable him to review such decision.”

It will be observed that the question is not one as to the amount of compensation, or whether there was,' as a matter of fact, any injury for which the relator was entitled to compensation, but in the language of the statute whether the property may be injured, etc..

Our conclusion is that the judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  