
    In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of, and Parties Interested in, Lands Claimed to Be Injured by the Change in Grade of Colvin Street, at the New York Central and Hudson River Railroad Belt Line, and Claimed to Be Owned by Lila G. Dwyer and Others. (Proceeding No. 99.) Grade Crossing Commissioners of the City of Buffalo and Others, Appellants; Nichols School Construction Company and Others, Respondents.
    Fourth Department,
    March 5, 1913.
    Municipal corporations — change of grade of city street — Railroad Law, section 52—when private crossing does not constitute farm crossing — damages—when conveyance of property, transfers right to award.
    Where, in a proceeding to change the grade of a city street, a parcel of land is divided by railroad tracks, and the portion north of said tracks fronts on the street to be improved, and the only connection between the portion south of the tracks and the street to be improved is a private crossing, the crossing is not a “farm crossing” within the meaning of section 52 of the Railroad Law, and an award of damages to the portion of land south of the railroad tracks is unauthorized.
    The right to damages accrues to the person owning the lands at the time the damage is done, and this cannot be ascertained until the work is completed, so that the benefits can be balanced against the disadvantages.
    Where the owner of land transfers title to the same by the short form of warranty deed, after the commencement of a proceeding to change the grade of a street, and before the completion thereof, his right to damages, if any, passes to his grantee.
    McLennan, P. J., dissented in part.
    Appeal by the Grade Crossing Commissioners of the City of Buffalo and others, from a report of commissioners of appraisal in this proceeding, filed in the office of the clerk of the county of Erie on the 17th day of July, 1912, and also from a final order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of August, 1912, confirming said report.
    
      Irving R. Templeton and Spencer Clinton, for the appellant Grade Crossing Commissioners.
    
      Jeremiah J. Hurley, for the appellant City of Buffalo.
    
      Lester F. Gilbert, for the appellant New York Central and Hudson River Railroad Company.
    
      Francis F. Baker, for the appellant William H. Glenny.
    
      Louis L. Babcock, for the respondents Nichols School Construction Company and others.
   Lambert, J.:

The improvement under consideration is the change of grade of Colvin street in the city of Buffalo. The appeal presents question only as to parcels 3 and 4. Parcel 3 consists of two sub-parcels, one of which lies north of the tracks of the New York Central and Hudson River railroad, and consists of thirty-eight and one-third acres; and the other of which lies south of such tracks, and contains twenty-six and one-third acres.

The northerly of these sub-parcels fronts on Hertel avenue and Colvin street. The southerly one fronts on Amherst street alone. The sole connection between the two is a private crossing over the tracks and right of way of the railroad. The southerly tract, having no frontage on the improved street, the sole justification for awarding any damages to it is upon the theory that, by virtue of the private crossing, the two sub-parcels are in law a single tract, the southerly portion thereby gaining a theoretical frontage on Colvin street through the northerly portion.

To sustain the award to the southerly portion of parcel 3 our attention is called to the “ farm crossing statute,” so called. (Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 52.) This statute requires every railroad corporation to erect and maintain farm crossings whenever and wherever reasonably necessary for the use of the owners and occupants of adjoining lands. It is to me apparent that this statute was enacted for the benefit of farm lands. ' Hence the expression, farm crossings.”

I see no justification for extending the plain spirit of the enactment to the present case so as to permit the award to the southerly portion of parcel 3, upon the theory that these are farm lands, the convenient working of which requires this private crossing; and, when once that right is established, then to permit the award based upon a valuation as city property. The essential element of necessity, for the convenient working of these lands, is not present to any appreciable degree, and the conclusion is reached that these are not farm lands, nor is this a farm crossing, for the purposes here under consideration, within the meaning of the statute. There is no justification for the award of damage to the southerly portion of parcel 3.

The only remaining question requiring mention arises as to parcel 4, through the intervention of William H. Glenny. The facts are practically without dispute. The elevation of the railroad tracks, in pursuance to the plan of this improvement, was commenced September 21, 1907. January 31, 1908, the new railroad fill was made across Colvin street, and the street was closed to traffic. April 30, 1908, a temporary roadway over the fill was opened and traffic in the street resumed. It was not until June 4, 1909, that the city began the work of actually lowering the grade of the street. The work of grading was complete October 29, 1909, when the paving of the subway was commenced.

February 17, 1909, Glenny was the owner of parcel 4, and on that date he executed a contract for the sale thereof to one Albright, providing for a conveyance to the purchaser August 15, 1909. This contract was made by Albright for the benefit of the claimant Nichols School Construction Company,, and the deed was eventually made to the construction company. That deed bears date March 16, 1909, was acknowledged July 31,1909, and recorded August 5,1909. There being no specific proof as to a delivery we must assume that it was delivered August fifth, the day it was recorded.

The general rule as to the ownership of damages in cases such as those here involved is not a serious dispute. The right to damages is not an appurtenance to the real estate such as would pass under a deed, in the absence of an expressed intention to include same. The right is in the nature of a chose in action, created by statute. It accrues to the person owning the lands at the time the damage is done.

The controversy arises in the application of such general rule to the undisputed facts in this proceeding. It is to he noted that the transfer of the title intervened the commencement of the change of grade and its completion, and it must be conceded that it is the change of the grade that causes the damage, for which recovery is allowed.

We are cited to the case of People ex rel. Janes v. Dickey (206 N. Y. 581) as being controlling here. But that case does not apply the general rule with sufficient strictness to be necessarily controlling. In that case the general rule is reiterated and applied it is true. But there the question was as to the ownership of damages where the transfer intervened the filing of the plan and the commencement of the actual work of changing the grade of the street. It was there held that the right became vested in the owner at the time the damage was done.

But the very statement of the rule, it seems to me, compels the conclusion that the ownership of the award must await the completion of the damage. Until then no one can tell how much damage will be done. The plan of the work may be changed or modified, and no damages are ascertainable until its completion. The damage here is purely consequential. None of the parcel is actually taken for the improvement, and in the determination of the amount of damage, benefits are to be taken into account. How then can the damages he said to be ascertainable until the work is complete and the benefits are balanced against the disadvantages ? We find support for our conclusion in the case of Matter of Grade Crossing Commissioners (154 N. Y. 550), where the court said: “Just damages can be based only upon the fact of injury found upon evidence tending to show injury done.” The fact or amount of injury done, it would seem, must await the completion of the work of the change of grade.

There is another and seemingly conclusive reason for affirm-. ing the award as to parcel 4. The short form of warranty deed was adopted in making the transfer of Glenny. By section 255 of the Eeal Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) the Legislature has construed the meaning of such a form of grant, and has declared what passes thereunder to include all claim and demand whatsoever, both in law and in equity, of said grantor of, in and to the granted premises. The right to the award arises from and out of the property, and is, therefore, a claim and demand of, in and to the granted premises. Very clearly then, if Glenny had the right to the award, he. conveyed it under this deed. (Mayor, etc., v. Curran, 3 N. Y. Supp. 533; Charde v. City of Brooklyn, 8 Misc. Rep. 598.)

It follows that the award and order appealed from should be in all things affirmed except as to parcel 3; that as to parcel 3, same should be reversed, and the proceeding remitted to the commissioners of appraisal, with the direction to make a new award, excluding all damages as to the southerly tract of parcel 3, without costs.

All concurred; McLennan, P. J., concurring for reversal as to parcel No. 3 and in the direction given to the commissioners, but voting for the giving of the further direction to separate the award so as to show the part awarded for change in grade of street and the part awarded for change in grade of railroad, but dissenting as to the affirmance of the award as to the other parcels and voting to send report as to such parcels back to the commissioners to similarly separate such damages upon the grounds stated in his dissenting memorandum in proceeding No. 95 handed down this day. (See 155 App. Div. 937.)

Order confirmed except as to parcel No. 3, and as to parcel No. 3 reversed and proceeding remitted to commissioners of appraisal with direction to make a new award excluding all damages as to that part of parcel No. 3 lying south of the New York Central track, without costs of this appeal to either party. Motion to send report of commissioners back for the separation of items of damages denied, with ten dollars costs.

All concurred, except McLennan, P. J., who dissented upon the grounds stated in his dissenting memorandum in proceeding No. 95 handed down this day. (See 155 App. Div. 937.) '  