In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo, Appellants, for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of and Parties Interested in Certain Lands in the City of Buffalo, Which May Be Injured by the Change of Grade of Swan and Jefferson Streets, and Claimed to Be Owned by Mary A. Anderson and Another, Respondents, and Others. (Proceeding No. 78.) The New York Central and Hudson River Railroad Company, and Others, Appellants

In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo, Appellants, for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of and Parties Interested in Certain Lands in the City of Buffalo, Which May Be Injured by the Change of Grade of Swan and Jefferson Streets, and Claimed to Be Owned by Mary A. Anderson and Another, Respondents, and Others. (Proceeding No. 78.) The New York Central and Hudson River Railroad Company, and Others, Appellants. Fourth Department, May 4, 1910. Highway—municipal corporations — change of grade of streets; city of Buffalo—limitation of action — right of abutting owners to compensation — party. The right of an abutting owner to compensation for a change of street grades for which he is assessable is in the nature of an easement that the grade of the street will remain unchanged. The only way a city can acquire title to or destroy such easement without compensation is by adverse possession for twenty years from the time the city makes the appropriation. Where a grade crossing commission was created by statute to eliminate railroad' crossings at grade within the city of .Buffalo where the charter gave abutting property owners whose property was damaged by a change of grade a right to compensation, and the statute provided that if the commissioners decided that the grade of a street should be changed and that property would be injured thereby for which the owners were lawfully entitled to compensation; they, might apply to the court for the appointment of commissioners to ascertain the damage, the six years’ limitation for the commencement of an action for injury to property does not apply to the claims of -abutting owners whose property was damaged by a change of grade t>y the construction of a subway to.carry a street under railroad tracks. The construction of a subway was in its entirety a use not contemplated for - street purposes. Where, in the proceedings brought by the grade crossing commissioners for the appointment of commissioners to ascertain damages to abutting owners, the city did not answer and failed to plead the Statute of Limitations, it waived its right to do so. Where, although the city was primarily liable for the damages, the railroad companies had agreed to repay to it their proportion of the sums paid, in complianee with an order awarding compensation for a change of grade, the railroads are. proper though not necessary parties tó proceedings to ascertain the damages, and where they submitted their rights to the court they are bound by its decision. Appeals by the petitioners, the Grade Crossing Commissioners of the City of Buffalo, and by The New York Central and Hudson Hi ver ¡Railroad Company and the West Shore Railroad Company, from an 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 1st day of July, 1908, appointing commissioners of appraisal in the above-entitled proceeding; also appeals by said parties and the city of Buffalo from the report of said commissioners, filed in said clerk’s office on the 13th day of April, 1909 ; and also appeals by all of said parties from an order entered in said clerk’s office on the 23d day of April, 1909, confirming such report, adjudging the amount of compensation to the respondents for lands taken, fixing, determining and allowing the ■ amounts for costs and expenses, and directing the payment of such compensation, etc. The grade crossing commissioners of the city of Buffalo came into being in pursuance of chapter 345 of the Laws, of 1888, as amended by chapter 255 of the Laws of 1890 and acts amendatory thereof, for the purpose of eliminating grade crossings where the railroads crossed the.streets of the city at grade. The general plan adopted by the commissioners contemplated a subway to carry Swan and Seymour streets under certain railroad tracks. The respondents owned premises abutting on Swan street, and the. plan formulated required the lowering of the grade of that street in front of their respective premises. The making of the improvement provided for was commenced in August, 1897, and completed conformably to the plan June 1; 1898. ¡No compensation had been paid to these abutting owners for the damages sustained by the lowering of the grade, and they severally applied to the grade crossing-commission in 1906 for the ascertainment and payment of these damages. In January, 1907, the grade crossing commission commenced this proceeding by verified petition, setting forth all the facts showing the construction of the subway, a description of the premises of the respondent owners claimed to be injured by the improvement made, and praying for the appointment of commissioners to ascertain and report the compensation to be paid to the owners by reason of the injury to their respective premises. The appealing railroad companies were made parties defendant to the proceeding, and answered, alleging, among other things, that more than six years had elapsed since the claim for damages had accrued prior to the commencement of the proceeding. Commissioners were, duly appointed to ascertain the damages, and after a hearing determined the compensation to be paid to the respondent Anderson $2,050, and to the respondent Wattles $1,825; and the report-of these commissioners was confirmed by the court at Special Term. Ralph K Robertson, Re Witt Clinton and Spencer Clinton, for the appellants Grade Crossing Commissioners. Alfred L. Becker, for the appellants New York Central and Hudson River Railroa'd Company and West Shore Railroad Company. Henry W. Killeen, for the respondent Anderson. Harry R. Williams, for the respondent Wattles. [MAJORITY — Spring, J.:] Spring, J.: The amount of the awards is not questioned on this appeal. The sole claim of the appellants is that the six-year Statute of Limitations (Code Civ. Proc. § 382, subds. 2 and 3) applies to the claim of each respondent, and that limitation had' expired before the proceeding was commenced. By the charter of Buffalo (Laws of 1870, chap. 519, tit. 9, § 17) for many years, where the city changed the grade of a street, the owner fronting thereon whose premises were damaged by the alteration was entitled to compensation, and this provision was continued in the present charter enacted in 1891 (Chap. 105, § 406), and which was prior to the adoption of the plan by the grade crossing commissioners. By section 12 of the Buffalo Grade Crossing Act (Laws of 1888, chap. 345, as amd. by Laws of 1890, chap. 255,. § 9) it is provided that if the grade crossing commissioners decide in the development of their plan that the grade of any street “ shall be changed, and that any property may be in jured thereby for which the owners or persons interested therein are lawfully entitled to compensation,” they “may apply to a Special Term of the Supreme Court for the appointment of three commissioners to ascertain the compensation therefor to be' paid to the owners of * * * the land proposed to be taken, or which may be in jured.” The mode of procedure is prescribed in this section', leaving the determination of any issues raised by the petition and answer with the court, and the only duty of the commissioners seems to be to ascertain and determine the compensation to be paid. ■ The provision for compensation to the owner whose, land has been or is .to be appropriated was enacted in view of the existing law which entitled him to recover such compensation. (Matter of Grade Crossing Commissioners, 154 N. Y. 550.) ' The Buffalo Grade Crossing Act did not create or give him this right. It simply provided' a remedy by which the compensation could be ascertained, so that the whole scheme of the abolition of these grade crossings might be within the domain of the gradé crossing commissioners, who represented the city. The commissioners were authorized' to decide whether a change of grade was necessary in the carrying out of any part of their plan, either in its original scope or as modified by them, and they could change the grade, however injurious to the abutting owner, but just compensation must be paid for the invasion of his property. The respondent owners were liable to be assessed for añy street benefits which the city might direct to be made, and their lots were graded and buildings erected presumably in accordance with the existing grade lines. The authority of the city to impose assessments and regulate the grade of the street carried with it the burden of compensation in case the grade was altered to the.damage of the lots. This right of the abutting owner to obtain compensation is in the nature of a grant, an easement in the street, that the grade will remain unchanged. (Matter of Torge v. Village of Salamanca, 176 N. Y. 324.) ' In that case Mrs. Torge, whose lot abutted on the street, claimed damages by reason of changing the street grade to an. undergrade crossing. By statute (Laws of 1883, chap. 113, as amd.) an owner whose premises adjoined a street in an incorporated village was entitled to compensation when the grade of the street was changed to the detriment of such premises. The Court of Appeals held that the lot owner was entitled to compensation, and used this language (at p. 331) : “ The right secured to an abutter to compensation for a change in the grade of a street is substantially the grant to him of an easement in the street to have it maintained at its existing grade, and any such easement' created by the statute is in every respect analogous to those invaded in the elevated railroad cases.”' The grade crossing commissioners caused the grade to be lowered without any compensation to the respondents. It invaded their property rights and violated the grant existing between the city and the owners. The only way the city can acquire title or destroy the easement is by occupancy, by adverse holding. That prescriptive title will not mature until twenty years have elapsed from the time the city or the grade crossing commissioners made the appropriation. (Goggin v. Manhattan R. Co., 124 App. Div. 644; Hindley v. Manhattan R. Co., 185 N. Y. 335, 350 et seq.; Lewis v. N. Y. & H. R. R. Co., 162 id. 202, 223 et seq.; Muhlker v. Harlem R. R. Co., 197 U. S. 544.) As already suggested, the right, so far as it pertains to compensation, is not one created by the Buffalo Grade Crossing Act. The lots fronted on the street before that act was passed. The right to have the grade maintained then existed. It is of no importance that its original source was by reason of a statute. The easement, the grant, was then subsisting. We do not mean to limit the compensation which may be awarded in any given case to that which existed when the Buffalo Grade Crossing Act was passed. Whatever injury is sustained by the owner in the development of the plan, even though his land is not taken at all, may be within the purview of the act, and he may be “lawfully entitled” to be recompensed therefor. We are considering the Statute of Limitations in the light of the facts contained in this record, and not laying down any .general rule to be applied where that question is not the determining one. Nor does the six years’ limitation for injury to property apply. (Matter of Clark v. Water Comrs., 148 N. Y. 1.) The grade crossing commissioners had the right to lower the grade of the street upon the payment of compensation. Without that payment it obtained no right to the easement or ‘grant held by the owners. They are now seeking compensation, and the body which appro- ' priated the land, recognizing its appropriation, has set on foot the remedy to redress the wrong and ascertain the sums which should be paid. The court (in 148 N. Y. 1, supra) say (at p. 8) in construing section 382 of the Code of Civil Procedure:. “ Mor is it a proceeding to recover damages for an injury to property, as provided for in subdivision 3 of this "section. It is not a proceeding tó recover damages for anything. The water commissioners have not. injured the plaintiff’s property and he seeks to recover no damages for any injury to. it within the meaning of the limitation statute. What he seeks is compensation in the shape of payment for the value of the property appropriated and taken by the city, of Amsterdam, through its authorized officials, and the resulting depreciation in value of the remaining property. It all comes under the head of liability to make compensation for property ..taken. By statute they had a right to take such property upon payment being made, and when payment is made the title would pass, and although the. water commissioners. had a right to initiate the proceedings themselves, yret not having done so the owner himself could, under the same statute, inaugurate them. They are' proceedings in either instance to provide for compensation and obtain payment for property taken, not to recover damages simply for' property injured. The section of the statute under discussion does not, therefore, apply to this case.” In the elevated railroad cases (Story v. N. Y. El. R. R. Co., 90 N. Y. 122; Lahr v. Met. El. R. Co., 104 id. 268, and many others) the city of New York owned the fee of the streets, and it was held that abutters upon the streets each had an easement tantamount to a grant and constituting property within the meaning of the Constitution, and that the construction of the elevated railroads interfering with access to the property, and with the free use of light and air, was inconsistent with the ordinary use of the streets, and compensation was awarded to the lot owner for this appropriation of .his property. In the improvement made by the grade crossing commissioners, the subway under the viaduct is more than a change of grade in the proper 'signification of that term. It is a use inconsistent with the usual and ordinary street use. The commencement of the depression for the subway was in front of these premises. The lowering of the street adjacent to these lots was small compared to the full depth of the subway and yet, as the commissioners have found, the diminution in value was substantial and the finding is not challenged by the appellants. The interference with the easement of these premises was for the purpose of constructing the subway which, in its entirety, is a use not contemplated for street purposes. I think the principle held in the elevated railroad cases that the appropriation of the street was an invasion of the grant or easement of the abutting owners is'applicable to the present'situation. As already noted, the present proceeding was initiated by the grade crossing commissioners. While the remedy to obtain compensation exists exclusively by the act (People ex rel. Myer v. Adam, 74 App. Div. 604; Matter of Grade Crossing Comrs., 6 id. 336), yet if they deny the right of the claimant to compensation he can compel them to act by mandamus. (Matter of Myer v. Adam, 63 App. Div. 540; affd., 169 N. Y. 605.) Or their action may be reviewed by writ of certiorari. If, • therefore, the grade crossing commissioners decided that the claims of the lot owners were barred by the Statute of Limitations the commission was not compelled to apply for the appointment of commissioners. The claimants might then commence a proceeding to test the validity of that decision. The remedy must be operative upon the grade crossing commissioners and ultimately they must act if any relief is to be obtained. In the present case the grade crossing commissioners made the petition for the appointment of commissioners. There was no suggestion that the claims had become invalid by reason of the running of the Statute of Limitations. The appealing railroad companies were parties to the proceeding and answered setting up the six years’ Statute of Limitations'. The city was also made a party, but did not answer, although it has appealed. I think the city has waived its right to the benefit of the running of the Statute of Limitations. Even if the commencement of the proceeding by the grade crossing commissioners is not in and of itself a waiver, the failure of the city to answer or raise the question of the statute at all must prevent it now from invoking the aid of the statute. Inasmuch as the city is primarily liable to the respondents,1 this conclusion would render the decision of the question heretofore discussed unnecessary, except for the fact that the final order is made an adjudication against the railroad companies. The order confirming the report of the commissioners contains this provision : “ It is further ordered that the said sums so allowed for compensation, costs and expenses be paid by the City of Buffalo in the first instance; and that the New York Central & Hudson Biver Bailroad Company for itself and on behalf of the West Shore Bailroad Company, and the Western New York & Pennsylvania Bailway Company each repay to the said City the several proportions agreed by each of said companies to be repaid to said City in their respective contracts entered into with the Grade Crossing Commissioners of the City of Buffalo.” The railroad companies may not have been necessary parties. Apparently only the owners or those interested in the lands in some way are required tó' be made parties. (Buffalo Grade Crossing Act, § 12, as amd. supra.) As a matter of practice, however, all parties interested seem in these proceedings very properly to be made parties. The railroad companies are at least proper parties, and having submitted their rights to the court are bound by the adjudication made. (Matter of Grade Crossing Commissioners, 166 N. Y. 69, 75 et seq.) In view of this situation it has seemed necessary for us to decide-whether the six years’ Statute of Limitations applies, not as affecting the respondents, but by reason of the liability of the railroad companies pursuant to their contract to repay to the city their proportion of the sums paid in compliance with the final order of confirmation. The orders should be affirmed, with costs of this appeal to each respondent. . All concurred, Bobson, J., in result only. Orders affirmed, with costs to each respondent.