
    Josephine A. Warner, Respondent, Appellant, v. The State of New York, Appellant, Respondent.
    Third Department,
    May 21, 1909.
    Beal property—injuries caused by change of street grade — damnum absque injuria — effect of section 37 of the Canal Law.
    The owner of lands abutting on a highway has no remedy for injury to his property caused by a change of grade, if the change be made under lawful authority. Any detriment to abutting owners is damnum absque injuria.
    
    Although section 37 of the Canal Law provides for the payment by the State of damages caused by the use or management of the canals in any case where the facts would create a legal liability against an individual or corporation, said section does not entitle a landowner to recover damages caused by the raising of a highway to meet the grade of a bridge over the barge canal, in the absence of proof of negligence.
    
      Cross-appeals by the plaintiff, Josephine A. Warner, and. by the defendant, The State of New York, from a judgment of the Court of Claims of the- State of New York in favor of the claimant for $400, entered in the office of the clerk of said court on the 18th day of June, 1908.
    
      Hugo Hirsh [N. R. Holmes of counsel], for the claimant.
    Edward R. O'Malley, Attorney-General [D. E. Brong, Deputy Attorney-General of counsel], for the State of New York.
   Sewell, J.:

The claim was for damages occasioned by the construction of an embankment in the center of the highway in front of claimant’s premises, so as to enable the public to cross Fish creek by a bridge built by the State in the construction of the barge canal. The embankment is supported, by perpendicular concrete walls, varying from four to eight feet above the' former grade of the highway, and extending the' whole length of the street line of the claimant’s premises. The claimant owns no part of the soil of the highway, and between the retaining wall on the easterly side of the embankment and the claimant’s westerly line is a space six to seven feet wide.

The principal question for our determination relates to the right' of the claimant to recover the damages caused by the raising of the grade of the highway tr meet the grade of the bridge. The law is well settled in this State that the owner of a lot abutting on a street or highway has no remedy or redress for an injury to his property, however serious, caused by a change of grade, provided only that the change of grade is made. under lawful authority. This, it is held, is not a taking' of private property, and whatever detriment the improvement may be to the abutting owner, is damnum absque injuria. (Radcliff’s Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195 ; Conklin v. N. Y., O. & W. R. Co., 102 id. 107; Reining v. N. Y., L. & W. R. Co., 128 id. 157; Rauenstein v. N. Y., L. & W. R. Co., 136 id. 528 ; Folmsbee v. City, of Amsterdam, 142 id. 118; Talbot v. N. Y. & H. R. R. Co., 151 id. 155; Fries v. N. Y. & H. R. R. Co., 169 id. 270.)

The learned counsel, for the claimant concedes that the State can only be made liable by force of some positive statute assuming such liability, but insists the Legislature has imposed upon the State a liability for the damages in question by section 37 of the Canal Law. (Laws of 1894, chap. 338, as amd. by Laws of 1899, chap. 280.) This section provides that “There shall be allowed and paid to every person sustaining damages from the canals-or from their use or management, or resulting or arising from the neglect or conduct of any officer of the State having charge thereof, or resulting or arising from any accident, or other matter or thing connected with the canals, the amount of such damages, to be ascertained and determined by the proper action or proceeding before the Court of Claims; but no judgment- shall be awarded by such court for any such damages in any case unless the facts proved therein make out a case which would create a legal liability against the State were the same established in evidence in a court of justice against an individual or corporation.” In Sipple v. State (99 N. Y. 284) the court said of a similar provision contained in an act ¡massed in the year 1870 (Laws of 1870, chap. 321, § 1) that the State intended by this provision to assume “ the same measure of liability incurred by individuals and corporations engaged in similar enterprises.”

Without proof of negligence it is clear that a contractor or corporation acting under authority of law would not be liable to an owner of realty abutting on a street or highway for damages caused by changing the grade. It was so held in Bellinger v. N. Y. C. Railroad (23 N. Y. 42). The court said: Where persons are authorized by the Legislature to perform acts in which the public are interested, such as grading, leveling and improving streets and highways and the like, and they act with proper care and prudence, they are not answerable for the consequential damages which may be sustained by those who own lands bounded by the street or highway.” The samg doctrine was asserted in Uline v. N. Y. C. &. H. R. R. R. Co. (101 N. Y. 98), where the crossing of a city street had been followed by a change of grade of the highway in front of plaintiff’s, premises and the court held that if the railroad company changed the grade by a valid authority the plaintiff could not recover.

That an abutting owner is not entitled to recover the consequential. damages he may have sustained by reason of a change in the grade of a street or highway was also held in Conklin v. N. Y., O. & W. R. Co. (102 N. Y. 107); Fobes v. R., W. & O. R. R. Co. (121 id. 505); Muhlker v. N. Y. & H. R. R. Co. (173 id. 549); Smith v. Boston & Albany R. R. Co. (181. id. 132). I think no claim was made' out against the State within the provision of. the section cited. Having reached this conclusion, it is unnecessary to consider whether the award is insufficient, which is one of the grounds upon which this appeal is taken. We conclude, therefore, that the judgment appealed from should be reversed and the. proceedings dismissed.

All concurred,

Judgment reversed and proceedings dismissed, without costs.  