Majority
p. 450(67 Hun, 81.) SMITH v. VILLAGE OF WHITE PLAINS. (Supreme Court, General Term, Second Department. February 18, 1893.) Argued before PRATT, CULLEN, and BROWN, JJ.
Headnote
Municipal Corporations—Change oe Grade op Street—Abutting Owner.In the absence of a statute providing for the award of damages on account of a change in the grade of a street, an abutting owner is not entitled to such damages, since he has no vested interest in the grade of such street as established, and changing the grade does not constitute a taking of the private property of the owner.
Appeal from special term, Westchester county.
Petition by Smith for the appointment of commissioners of appraisal to assess the damages to petitioner’s property on account of the change of grade of a street on which such property abuts, in the village of White Plains. From a judgment dismissing his petition, Smith appeals.
Affirmed.
Wilson Brown, Jr., for appellant.
H. T. Dykman, for appellee.
The appellant’s contention is based upon the idea that an abutting owner has a vested interest, in the grade of a street as established, and that a change of grade is a taking of private property. We .believe this to be an error. The right of an abutting owner to recover
p. 451
damages for a change of grade in a street depends upon statute, and in many, and perhaps most, cities of the state, does not exist. The legislature had the power to repeal the law of 1888, in whole or in part. We do not see that a landowner in White Plains has any more right to complain that he has lost the benefit of the act of 1883 than a landowner in Brooklyn has that he has never been allowed such relief. The remedy provided for the White Plains landowner may be imperfect, but for similar injuries property holders in other localities have no remedy whatever. Dismissing the petition on the grounds set forth was in effect sustaining a demurrer. We think there was a trial of the legal question. Order affirmed, with costs. All concur.