#### In the Matter of the Claim of Augusta Johns, Appellant, Respondent, *v.*The Village of Salamanca, N. Y., and Erie Railroad Company, Respondents, Appellants, for Damages for Change of Grade of Main Street in Said Village of Salamanca, N. Y.

Fourth Department,

December 2, 1908.

Real property — municipal corporations — change of grade in city street —damages — diminution of rental value.

Commissioners appointed under chapter 113 of the Laws of 1883, as amended, to assess damages caused to an abutting landowner by a change of grade of a village street, may allow not only damages to the fee but also for diminution in the rental value of the premises from the time of the permanent change of grade, even though apart from the statute there could be no recovery whatever at common law.

Williams, J., dissented, with opinion,

*718Cross-appeals by the claimant, Augusta Johns, and by the defendants, The Village of Salamanca and another, 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 Cattaraugus on the 18th day of January, 1908, affirming in part and disaffirming in part the report of commissioners appointed to ascertain damages herein.

*Frank H. Callan*and *Henry P. Nevins,*for the claimant.

*George H. Ansley,*for the village.

*Thomas H.*Dowd, for the railroad company.

Williams, J.:

The order should be reversed and an order made directing a rehearing before new commissioners to be appointed by the Special Term. Ho costs to either party in this court. The proceeding was instituted by the property owner claiming damages under chapter 113 of the Laws of 1883, as amended by chapter 281 of the Laws of 1884, and chapter 172 of the Laws of 1894. The commissioners allowed both damages to the fee and rental damages. The court at Special Term confirmed as to the fee damages and disaffirmed as to the rental damages. (See *Matter of Hoy*v. *Village of*Salamanca, 57 Misc. Rep. 81.) The claimant appeals from the part of the order disaffirming the allowance of rental damages. The village and the railroad appeal from the whole order on the ground that the Special Term had no power to confirm in part and disaffirm in part. It could only confirm or set aside the report in full.

*First.*As to the allowance of rental damages, the act of 1883 provided in section 1: *“*Whenever the grade of any street, highway or bridge in any incorporated village in this State shall be changed or altered so as to interfere in any manner with any building or buildings situate thereon, or adjacent thereto, or the use thereof, or shall injure or damage the real property adjoining such highway so changed or altered, the owner or owners of such building or real estate may apply to the Supreme Court, in the judicial district in which such property is situated, for the appointment of three commissioners to ascertain and determine the amount of damage sustained thereby ; due notice of such application shall be given to the *719person or persons having competent authority to make such change or alteration.”

Section 2 (as amended by chapter 172 of the Laws of 1894) provides : “ All the provisions of the Condemnation Law, relative to the appointment of commissioners, their-powers, duties, fees and expenses, shall be applicable to the appointment of, and the powers, duties, fees and expenses of the commissioners, appointed in pursuance of the provisions hereof,” etc.

As to rental damages, the commissioners found: *“*That the said grade of Main street in said village was permanently changed in front of said premises, and that said permanent change of grade in front of said premises is, and has been since September 1, 1901, a continuous trespass upon the easement of access to claimant’s said premises, and solely in consequence of said trespass, and aside from any other causes, the rental or useful value of said premises was depreciated from said date to the date hereof in the sum of $1,225, below what said rental value would have been during said period if there had been no change in the grade of said street in front of said premises, and the rental value of said premises was thereby damaged in the amount aforesaid, and the said sum of $1,225 is hereby awarded to the claimant Augusta Johns, as full compensation for said rental damages.”

The work was commenced September 1,1901, and was completed in about one year. The report was not made until July 19, 1907. This proceeding was begun September 11, 1902, shortly after the completion of the work, but did not culminate in a report by the commissioners as stated above until five years later. We are not interested so much in the question whether the rental damages allowed were excessive as we are in the question of the right to such damages at all.

The ground upon which the commissioners allowed the rental damages, that the change in the grade of the street was a continuing trespass upon the claimant’s easement óf access to her property, was erroneous. There was never any trespass at all The change was made under authority of law. There was not at common law any right in the property owner to recover damages occasioned by such change. *(Matter of Torge*v. *Village of*Salamanca, 176 N. Y. 324 ; *Smith*v. *B. & A. R. R. Co.,*181 id. 132; *Matter of Melen*
      *720
      *backer*v. *Village of Salamanca,*188 id. 370.) The statute quoted was necessary, and was passed to enable the property owner to recover such damage. There is no controversy here over the allowance of the damage to the property, the fee damage. There might well have been a provision for interest on the award of fee damages from the time of the commencement of the work, but no such provision is contained in the statute, and it is not claimed anything could be allowed for such interest. It seems to me to be equally clear that no provision is contained in the statute for the allowance of loss in the rental value from the time the work is commenced until the report of the commissioners is made. The claimant really contends that such rental damages should be allowed to indemnify her for inability to recover interest, but I think this will,not answer. If the Legislature desired to allow interest, they could have done so. They were under no obligation to provide for the recovery of any damages at all, and the property owner would then have been remediless. They saw fit to allow merely damages to the property, fee damages, without interest of any kind, and I think without rental damages such as are claimed here. The commissioners seemed to realize that something more was necessary than the statutory provision to authorize the allowance of this kind of damages, and, therefore, they conceived the idea of a continuing trespass from the commencement of the work until they made their report, a period of six years, in analogy to the rule in the New York elevated railroad cases. There was a continuing trespass there, but there is none here, as already stated.

It seems to me the true rule applicable to this statute is that laid down in *Matter of Squire*(125 N. Y. 131), where it was held under a statute containing similar provisions that the damages contemplated are only the permanent injuries to the property from the completed work and its continuance thereafter. The Buffalo street grade crossing cases are not, I think, applicable here. The statutes under which the damages are allowed are not alike, and the proceedings are entirely different. The long delay in the proceeding which was brought by and was under the control of the claimant, was through no fault of the village or the railroad, even if not chargeable to the claimant. The proceeding might very likely have been commenced a year earlier than it was, as soon as the work was com*721menced. I think the Special Term properly held the claimant entitled only to damages to the property known as “ fee damages.”

*Second.*As to the question raised by the village and the railroad that the Special Term could not confirm the report in part and disaffirm as to the balance, section 3371 of the Code Civil Procedure seems to provide that the report of the commissioners may be confirmed or set aside ; not that it may be modified or changed in any respect. *(Manhattan R. Co.*v. *O’Sullivan,*6 App. Div. 571; affd. on opinion of court below, 150 N. Y. 569; *Matter of Central New York Tel. Co.,*36 App. Div. 553; *Matter of Town of Guilford,*85 id. 207.) The parties do not differ as to this proposition. The claimant contends only that, in case this court holds she was entitled to a confirmation of the entire report by the Special Term, we have the power to reverse the order as made, and ourselves make a new order of confirmation, and this because we can do whatever the Special Term should have done. (Cases last above cited, and *Matter of Trustees, etc.,*137 N. Y. 95.)

But, inasmuch as we conclude that the commissioners’ report was erroneous, the order should be reversed, and a new order made directing a rehearing before new commissioners to be appointed by the Special Term.

Spring and Robson, JJ., concurred in result in a separate memorandum by Spring, J.; opinion by Kruse, J., for reversing the order of the Special Term and confirming the report of the commissioners; McLennan, P. J., voted for affirmance of the order as made by the Special Term.

Spring, J. (concurring):

I concur with Mr. Justice Kruse that rental damages are allowable.

I think, however, that the sum awarded is excessive. The improvement in front of the premises of the petitioner was not completed until September, 1902, and the evidence shows that “travel” was not “suspended or cut off” until that time. The commissioners allowed damages from September, 1901, a year before they commenced to accrue. In addition to this error the sum awarded for the time permitted is more than the evidence justifies. *722This may be attributable somewhat to the erroneous position of the commissioners that the change of grade was a “ continuous trespass upon the easement of access to claimant’s said premises, and solely in consequence of said trespass, and aside from any other causes, the rental or useful value of said premises was depreciated.”

I think the order should be reversed and the matter remitted to the Special Term for the appointment of new commissioners.

Robson, J., concurred.

Kruse, J. (dissenting):

That the petitioner is entitled to recover the damages to her premises by reason of the change in the grade of the street which said premises adjoin has been settled by the Court of Appeals in *Matter of Torge*v. *Village of Salamanca*(176 N. Y. 324). The controversy here is over the amount of damages. That question is in dispute not only upon the facts, but the rule of law applicable for determining the damages is in dispute as well.

It appears that the work of changing the grade of the street was commenced in 1901, as early as the month of September, and completed a year later. The commissioners determined that the premises in question were depreciated in value $2,100 by the change in the grade of the street. This conclusion seems to have been reached by ascertaining the difference between the value of the lands before and after the change in grade of the street, and is reported by the commissioners as damages to the fee value of the premises. Mo interest was allowed thereon, although the commissioners reported that the grade was changed as early as September 1, 1901. The sum of $1,225 was, however, allowed for loss in the rental value of the premises from the time that the grade was changed until the making of the award on the 19th day of July, 1907.

The Special Term confirmed the award as regards the so-called fee damages, but held that the petitioner and claimant was not entitled to recover the additional sum of $1,225 allowed for loss in rental value, and disallowed the same.

The right of recovery is based upon the provisions contained in chapter 113 of the Laws of 1883. That act provides for compensation in a case like this, whenever the grade of the street is changed *723or altered so as to interfere in any manner with any building or buildings situate thereon or adjacent thereto, or the use thereof, or so as to injure or damage the real property adjoining the highway so changed or altered.

The statute evidently intended to provide for full compensation for the injury or damage done to the property under such circumstances ; and that, in this case, includes not .only damages to the fee, but diminution in the rental value from the time of the permanent change in the grade.

Manifestly, the petitioner would not obtain full compensation if she can recover nothing for the loss in the use and occupation of the property for the time intervening the change in the grade and the making of the award. It may well be that had interest been allowed upon the award for fee damages from the time of changing the grade of the street, that award, together with such interest, would have been adequate compensation, but that was not done.

The case of *Matter of Squire*(125 N. Y. 131) is relied upon as an authority for excluding the damages arising out of the loss in rental value. In that case it was held that under the provisions of a statute which authorized the commissioners to award damages to the owner of lands contiguous to land taken, which may be affected by the construction and maintenance of the aqueduct and its appurtenances, the owner is not entitled to recover damages for the temporary inconvenience occasioned to adjacent lot owners from the prosecution of the work during the time of construction. That, however, is not this case. Here the rental damages are not for temporary inconvenience, but result from a radical and permanent change in the grade of the street, and, I think, should be allowed. (*Village of Port Henry*v. *Kidder,*39 App. Div. 640; *Matter of Grade Crossing Commissioners, 17*id. 54, 62; 154 N. Y. 550; *Matter of Grade Crossing Commissioners,*52 App. Div. 27; 165 N. Y. 605.)

This case is like one where a plaintiff in an ordinary condemnation proceeding is permitted to enter into possession of the lands sought to be acquired, after the proceeding is commenced and before it is consummated, as is now provided by the statute. (Code Civ. Proc. §§ 3379, 3380.) In such a case it could not reasonably be claimed, as it seems to me, that an owner should not be compensated *724either for the nse of the property in the meantime or interest on the award from the time it was so taken possession of.

While the award for loss in rental value seems large, I think we cannot say it is so excessive as to warrant setting aside the report of the commissioners upon that ground.

The order, so far as it disallows the damages for depreciation in the rental value and refuses to confirm the report of the commissioners in that regard, should be reversed; the report of the commissioners should be confirmed, and in all other respects the order appealed from should be affirmed, with costs to the petitioner.

Order reversed and report of commissioners vacated and set aside and a rehearing ordered before new commissioners, with costs to abide event.