
    Edwin Beardsley et al., Resp’ts, v. The Lehigh Valley Railway Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1894.)
    
    Condemnation proceedings—Award—Railroad crossing.
    An award, in condemnation proceedings, in the absence of proof that the damages allowed rested in any degree upon the form or manner of constructing the railroad crossing, is no defense to an action brought to compel the company to construct an underground crossing.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made October 4, 1892, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term. The nature of the action and the facts, so far as material, are stated in the opinion.
    
      A. P. Rose, for app’lt; James C. Smith, for resp’ts.
    
      
       Affirming 48 St. Rep. 485.
    
   Finch, J.

Two questions of law are raised in this case. The action is in equity to compel the defendant company to construct an under-grade crossing on the plaintiff’s farm. One of the reasons now given for such a crossing is that there may be in that manner provided a safe and convenient passage for cattle to reach water which would be much more inconvenient and unsafe if the only crossings were at grade. The defendant answered that such inconvenience had already been allowed and paid for in condemnation proceedings, and some of the evidence at that time given was recited as proof of the fact. There was testimony that the line of the railroad would leave the adequate and reliable supply of water wholly on one side of the track and the resulting inconvenience was taken into account. But the award was necessarily made upon the assumption that proper and suitable crossings would be made by the company, and the damages given are not shown to have rested to any extent upon the form or manner of constructing the crossings. Witnesses may have given their opinions on the supposition that the crossings would be at grade, but they did not say so and it does not appear that they excluded from their minds the possibility of an under-crossing, or that their estimates of the general damage to the farm would have been less if they had taken that possibility into account. The defendant promised nothing of the kind, and did not reduce or seek to reduce the damages by agreeing to give such a crossing. Both parties must be assumed to have stood upon their legal rights as to suitable crossings, and those rights survived the award and were in no manner extinguished or affected by it. That doctrine was substantially held in Jones v. Seligman, 81 N. Y. 190.

The second objection arises upon defendant’s exceptions to the admission of opinions showing the difference in value of the farm with or without the under-crossing, and recent decisions of ours are cited as authority. Roberts v. N. Y. Elevated R. R. Co., 128 N. Y. 455; 40 St. Rep. 454; Avery v. N. Y. C. & H. R. R. Co., 121 N. Y. 31; 30 St. Rep. 471. No such specific objection was interposed to the evidence. Mitchell v. Met. Elevated R. Co., 132 N. Y. 552; 43 St. Rep., 476. And since no judgment for damages was given, the opinions bore only upon the general question involved', and were not vicious in the sense of determining the identical questions of fact submitted for a decision.

Neither ground of appeal warrants a reversal.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  