Rogers v. Village of Attica — 113 A.D. 603

Majority

p. 603

Richard J. Rogers, Appellant, v. The Village of Attica, Respondent.

Fourth Department,

May 2, 1906.

Headnote

Municipal corporation — landowner cannot restrain village of Attica from changing grade of street — remedy, if any, is for damages.

The village of Attica is not bound to take proceedings under section 1 of title 6 of its charter before changing the grade of a street, and an abutting land- " owner cannot restrain the village from changing the grade on the ground that proceedings under said section were not taken.

Any damage to which such landowner may be entitled need not be paid before the change of grade is made, but is recoverable, if at all, only under section 159 of the Village Law.

Appeal by the plaintiff, Richard J. Rogers, from a judgment of the Supreme Court in favor of the defendant, entered in the office

p. 604

of the clerk of the county of Wyoming on the 9th day of February, 1904, upon the report of a referee dismissing the complaint upon the riierits. . '

Russell J. Stone, for the appellant.

Willis E. Hopkins and Elmer E Charles, for the respondent.

The judgment should be affirmed, with costs, ,

. The action is to restrain the village of Attica from changing the grade of the street and sidewalk'in^front of plaintiff’s premises on Market street. The plaintiff has a drug store upon his property, adjacent to the sidewalk, and the-sidewalk is from seven to eight or ten. feet wide. The defendant proposes to change the grade in front of the- drug store by lowering the sidewalk about two and one-half feet. " ■

The defendant,' as a general proposition, has power to make changes in the grade of, its streets: Such power is given'by section 1 of title 6 of the charter (Laws of 1890, chap. 560). The plaintiff claims, however, that the ■ provisions, of such section * as to the release of damages or a petition of ten freeholders, and the proceedings upon the presentation of such petition, are applicable to a proposed change of -grade, and the relief sought in this action, restraining the- defendant from making such change' of grade, is based upon the failure of the defendant to procure such release, or petition, and to comply with the provisions of the section following the presentation of such a petition.' The defendant claims these provisions áre not, applicable to a proposed change of -grade, but only to the opening or altering.of' a street, and that altering means changing the location of the street in whole or in part. And it " further claims the only remedy for damages the- plaintiff has, if any, is under section 159 of the Village Law (Laws of 1897, chap. 414, as amd. by Laws of 1901, chap. 68).

There-can be no doubt as to the proper construction of section. 1' of title 6 of defendant’s charter. The word “ alter ” does not coYer “ change of grade.” (Matter of Grab, 31 App. Div. 610 ; Buchholz v. N. Y., L. E. & W. R. R. Co., 71 id. 452 ; affd., 177 N. Y. 550 .)

In Matter of Grab (supra) it was held that the power to grade

p. 605

given by the charter did not cover a “regrading” or changing of the grade of a street, and, therefore, the remedy for damages for change of grade was under section 159 of the Village Law only. In the Buchholz Case (supra) section 58 of the charter of Port Jervis (Laws of 1873, chap. 370) gave the trustees power to lay out, open, make, improve, straighten, widen, extend, alter, repair and discontinue streets, etc., and then section 59 provided that before a street could be laid out, opened, extended, widened, graded, paved, macadamized, improved or discontinued, certain proceedings must be had, and it was held the alteration of a street was not covered by the provisions of section 59, the court -saying: “ An alteration of a highway, as the expression is used, generally refers to a change in the course thereof, and, therefore, necessarily involves to some extent the establishment of a new highway and the vacation ' of the part of the old highway for which the substitution is made. (15 Am. & Eng. Ency. of Law [2d ed.], 392, 393, and authorities cited in notes 1, 2, 3 and 4.) ”

Under our construction of this section 1 of title 6 of the charter, the defendant was not bound to take any proceedings before making the change of grade, and, therefore, the action could not be maiti- - tained to restrain the defendant from making such change of grade.

The defendant had a right to change the grade of the street and sidewalk, regardless of the question as to plaintiff’s ownership of the fee of the street. Any damages or compensation to which plaintiff might be entitled, whether owner of the fee or not, need not be paid before the' change is made, but are recoverable as provided in the Village Law.

The complaint was properly dismissed, and the judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.