with the demand, the accused, when arrested,, privilege, or his objection to a trial on such shall be taken before a judge, to be exam-indictment, is not in the nature of a plea in ined on the charge;" which judge shall "pro- abatement. The office of that plea is to raise ceed to hear and examine the charge, and upon proof made in such examination, by him adjudged sufficient, shall commit" the accused to jail, to be delivered to the agent appointed to receive him. It is further required, as a condition precedent to the delivery of the accused to the agent, that the latter deposit with the clerk of the court a sum of money "equal to ten cents a mile from the place where the arrest has been made to the proper place for the prosecution;" and, "in case the supposed fugitive should not be found guilty of the crime charged in the warrant for his arrest, such deposit shall be paid to him.”

NEW YORK COURT OF APPEALS.

(October 6, 1891.)

APPEAL by defendant from a judgment of

the General Term of the Superior Court of Buffalo, affirming a judgment of the Trial Term in favor of plaintiffs in an action brought to recover damages for an interference with plaintiffs' easements in the street in front of their property. Affirmed.

The facts are stated in the opinion. Mr. John G. Milburn, for appellant: The defendant is not liable in this action for any diminution of the value of the use of the plaintiffs' premises caused by the raising of the grade of a portion of Water Street, and the construction and operation of its railroad there

on.

Fobes v. Rome, W. & O. R. Co. 8 L. R. A. 453, 121 N. Y. 505; Kane v. New York Elev. R. Co. 11 L. R. A. 640, 125 N. Y. 164; Ottenot v. New York, L. & W. R. Co. 119 N. Y. 603. The city was the owner of the fee of Water Street, having acquired it through condemnation proceedings authorized by the charter of the city.

Ottenot v. New York, L. & W. R. Co. supra. In any event the plaintiffs never owned any part of Water Street as their boundary line on that street was the exterior line of the street.

White's Bank of Buffalo v. Nichols, 64 N. Y. 65; English v. Brennan, 60 N. Y. 609; Kings County F. Ins. Co. v. Stevens, 87 N. Y. 292, 41 Am. Rep. 361.

The principal question in this case respects the rights of the plaintiffs, as abutting owners, to recover damages occasioned by the construction of the defendant's road in Water Street, in the city of Buffalo. The plaintiffs' premises are situated on the northerly side of Water Street, and are bounded easterly by Commercial Street, westerly by Maiden Lane, and southerly by Water Street, and occupying the whole lot is a four-story brick building used as a store and residence, constructed before the railroad was placed in Water Street. Water Street runs easterly and westerly, and has existed for more than forty years. Up to 1875, the plaintiffs owned the fee to the center of the street opposite their premises, subject to the public easement. In that year proceedings were taken by the city of Buffalo to acquire the title to a large number of streets in Buffalo, including Water Street, by condemnation, and resulted in the city acquiring the title, upon payment of a uniform and nominal award of five cents damages to each of several hundred owners of lots on the streets taken, including the plaintiffs. In 1882 the common council of the city of Buffalo by ordinance granted to the defendant the right to construct and maintain two railroad tracks "along Prince Street, to a point midway between Hanover Street and Lloyd Street; thence across Lloyd Street, at such grade as will permit said Company, with a practical construction, to cross Commercial slip at the height fixed by the state engineer; thence, to and along the center of Water Street, to the docks of the Delaware, Lackawanna & Western Railroad Company at the foot of Erie Street. Commercial slip is a part of the Erie Canal, and separates Prince Street and Water Street, and together they form a continuous street, except as it is inUnder the charter of the city of Buffalo if terrupted by Commercial slip. The defendadjacent owners suffer damage by a change of ant, in pursuance of the permission of the grade provision is made for ascertaining their common council, and in accordance with the damages and for raising a fund for their pay-map and profile approved by the council,

The defendant was authorized to build its road across or along any street with the assent of the municipality, and across any state canal subject to the powers vested in the canal commissioners by Laws of 1834, chap. 276, § 17.

Laws of 1850, chap. 140, 28, subdiv. 5. A change of the grade of a street, or of a portion of a street, confers no right to compensation upon an adjoining owner whose property is damaged in the absence of specific legislation imposing the duty of making compensation.

Radcliff v. Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357; Conklin v. New York, O. & W. R. Co. 3 Cent. Rep. 194, 102 N. Y. 107; O'Connor v. Pittsburgh, 18 Pa. 187; Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70; Lansing v. Smith, 8 Cow. 146.

ment.

Laws of 1870, chap. 519, title 9, § 17.
This remedy is exclusive.
Heiser v. New York, 6 Cent. Rep. 35, 104
N. Y. 68; Dillon, Mun. Corp. 3d ed. § 686.

As the city had the right and power to change the grade of a portion of Water Street it could authorize the defendant to make the change and the defendant would have the same immunity from liability to abutting owners which the city would have.

Ottenot v. New York, L. & W. R. Co. 119 N. Y. 603; Briggs v. Lewiston & A. H. R. Co. 4 New Eng. Rep. 546, 79 Me. 363; Wolfe v. Covington & L. R. Co. 15 B. Mon. 404; Slatten v. Des Moines Valley R. Co. 29 Iowa, 148, 4 Am. Rep 205.

The grant of the common council was an

and under the direction of the city engineer, proceeded to raise the grade on Prince Street so as to enable the Company to cross Commercial slip by a bridge 14 feet above the waterline, the height fixed by the state engineer, and to meet this grade of the bridge constructed an embankment in the center of Water Street from the bridge westerly for the distance of 300 feet, passing the plaintiffs' premises. Water Street is 66 feet wide. sidewalk on the Water Street side of the plaintiffs' lot occupies 14 feet. The embankment of the defendant is 24 feet wide, and at the junction of Water and Commercial Streets (at the corner of which is the plaintiffs' lot) it is 5 feet 9 inches high, and from that point descends westerly, by a gradual descent, passes the plaintiffs' lot, and across Maiden

The

of the street; and the case, it is claimed, is not distinguishable in principle from what it would have been if, without any change of grade, the tracks had been laid on the original surface of the street. There is a third subordinate defense insisted upon, viz., that the charter of Buffalo gives a special remedy for injuries to lot-owners from a change of grade of streets, and that this remedy is exclusive, and was the only one open to the plaintiffs.

was

Lane, and reaches the original level of the | Radcliff's Exrs., 4 N. Y. 195, damnum absque street nearly 300 feet west of the corner of injuria. The tracks, it is said, were placed Commercial and Water Streets. The on the new grade, and therefore on the surface embankment is supported laterally by solid, perpendicular stone walls, which extend along Water Street in front of the plaintiffs' lot, and across the entrance of Maiden Lane. Between the perpendicular stone wall, on the northerly side of the embankment and the sidewalk in front of the plaintiffs' building is a space only 8 to 9 feet wide, which is the only carriage-way left on the Water Street side of the plaintiffs' premises. Commercial Street extends northerly and southerly from Main Street to Buffalo Harbor. The raising of the embankment in Water Street rendered it necessary to make an embankment in Commercial Street to meet the grade of the railroad, and this was done by the defendant. The defendant paved the surface of the 24feet strip in Water Street occupied by its embankment, and laid there on part of the way one track, and part of the way two tracks, for the accommodation of its business. Carriages or teams cannot cross Water Street in front of plaintiffs' premises. This is prevented by the embankment. Access to their premises on the Water Street side, from Commercial Street south of Water Street, is also prevented, except by first crossing Water Street, and then passing along the embankment on Commercial Street 130 feet, and then turning into the roadway on Commercial Street between the embankment in that street and the sidewalk, and thence into Water Street, or else, when reaching the junction of Commercial and Water Streets, by turning west, and driv. ing down the embankment along the railroad tracks, about 300 feet, to the end of the grade, and then turning, and going westerly along the narrow roadway, 8 or 9 feet wide, on the northerly side of the embankment. This space is not sufficient to allow wagons to pass each other, nor can a single wagon with horses be turned around in this space, except with difficulty. It was conceded that the plaintiffs, up to the time of the trial, had sustained damages, in the diminished rental value of their premises by reason of the embankment, in the sum of $525, for which sum a verdict was rendered, and no question now arises as to the rule of damages or the amount, provided, upon the facts, damages are legally recoverable.

The counsel for the defendant rests his claim that the judgment should be reversed upon two general propositions: first, that the laying of tracks for the running of cars by steam on the grade of a city street, and the operation of trains thereon under legislative and municipal authority, where the fee of the soil is in the municipality, violates no property rights of an abutting owner, and consequently, in the absence of a special statute authorizing compensation, he is without remedy, although his property may be injured; and, second, that the erection of the embankment to accommodate the street to the use of the defendant was merely a change of grade which it was competent for the city to authorize in its discretion, and that such change of grade, although it damaged the plaintiffs' property was within the Case of

The first proposition is sustained by our recent decision in Fobes v. Rome, W. & O. R. Co., 121 N. Y. 505, 8 L. R. A. 453. Prior to that decision it had been decided in People v. Kerr, 27 N. Y. 188, and in Kellinger v. Forty Second St. & G. S. F. R. Co., 50 N. Y. 206, which followed it, that the laying of horse railroad tracks in the streets of the city of New York, the fee of which was in the city, consistent with their use as public, open streets, and with the trust upon which the streets were held, and that abutting owners had no remedy for any consequential injuries they might sustain from the construction and operation, under legislative authority, of a horse railroad in the street, in the absence of any negligence. The case of Williams v. New York Cent. R. Co., 16 N. Y. 97, was that of steam railroad over lands previously dedicated by the owner for a street, where he retained the fee; and it was held that such a use was not within the scope of the dedication, and that the Legislature could not authorize such use except on condition of making compensation to the owner of the fee. The same doctrine was applied, under similar circumstances, to the case of a horse railroad in Craig v. Rochester City & B. R. Co., 39 N. Y. 404. These latter cases, as will be observed, decide the principle that neither a horse nor steam railroad can be authorized, in streets the fee of which is in the adjacent owner, without his consent; while the former cases hold that, where the fee is in the municipality, horse railroads may be authorized against the will of the abutting owner, and without making compensation. The distinction is made to rest on the location of the fee. The case of Fobes v. Rome, W & O. R. Co., supra, presented the distinct question whether the construction of a steam surface railroad, part of a long line of railroad, on the ordinary grade of a street, under legislative authority, subjected the company to liability for consequential injures to the lot of an abutting owner whose lot was bounded by the side of the street, and who had no title to the soil therein. It was urged on behalf of the plaintiff that the cases relating to horse railroads were not applicable by reason of their different purpose, such railroads being primarily designed for street traffic, and steam railroads, such as that then in question, for ordinary railroad traffic, and also that the one, by reason of the different motor, imposed a different and increased burden on the street from that imposed by the other, and interfered to a much greater extent with the enjoyment of the street by abutting

that the change is made under lawful authority. This, it is held, is not a taking of the abutting owner's property, and the injury requires no compensation. The hardships arising from the application of this rule of

owners. The opinion of Judge Peckham in that case contains a careful review of the street-railway cases in this State, both in this court and the supreme court, and it was shown that it had become the settled doctrine of our courts that, as against abutting owners hav-law have led to constitutional amendments in ing no title to the bed of the street, it was many of the States, providing for compen. competent for the Legislature to authorize the sation for property damaged as well as taken construction of a steam surface railroad there- in the prosecution of public improvements. in, without making compensation to the In this State the law and the Constitution are owners of the abutting property injured by unchanged. But that there is a limitation to such construction, and that there was no legal public powers over the streets of a city, distinction between the case of a railroad which cannot be transgressed without inoperated by horses and one operated by steam-vading the constitutional rights of abutting power and the court reversed the judgments owners, was a principle announced in the below in favor of the plaintiff. The court in Story Case, 90 N. Y. 122, and confirmed and its opinion distinctly limits the doctrine to broadened so as to apply to other circumstancases where the railroad is laid on the same ces in the subsequent cases. The elevated grade as the street, leaving the street substan- railroad structure, the subject of complaint tially free and unobstructed for ordinary in the Story Case, occupied, with its supports travel. The learned judge, after referring to and stairways. portions of the street, and such the law as established in this State on the occupation was necessarily exclusive, and subject, says: "The company was therefore this fact was prominently brought into view not liable to such an owner for any conse- in the opinions delivered. The parts of the quential damages arising from a reasonable street so occupied could not be used for use of the street for railroad purposes, not ex-general street purposes. This fact, it is clusive in its nature, and substantially on the same grade as the street itself, and leaving the passage across and through the same free and unobstructed for the public use. And again, after showing that there was no difference in principle between the cases of a steam and horse railroad, he says: "If the use of either becomes unreasonable, excessive, or exclusive, or such as would not leave the passage of the street substantially free and unobstructed, then such excessive, improper, or unreasonable use would be enjoined, and the adjoining owner would be entitled to recover damages sustained by him therefrom, in his means of access, etc., to his land.

claimed, distinguishes the present case from that, and it is insisted that this case is more nearly allied to the Fobes Case than to that "of Story.

It is true that the part of the street occupied by the embankment of the defendant is still a part of Water Street. It is also true that the occupation of the embankment by the tracks of the defendant was not necessarily exclusive, that is to say, it is possible for ordinary vehicles to traverse the embankment longitudinally,-but such travel would subject the traveler to the risk of meeting railway trains on the narrow causeway, and he would have no opportunity to turn off the embankment, except by driving over the perpendicular wall which supports It is no longer open to debate in this State it. The plaintiffs are practically excluded that owners of lots abutting on a city street, from the use of that portion of the street by the fee of which is in the municipality for the presence of the railroad there. They and street uses, although they have no title to the their customers cannot drive across it, and, soil, are nevertheless entitled to the benefit of if they had the temerity to drive along it, the street in front of their premises for access nevertheless they would be compelled to make and other purposes, of which they cannot be a long circuit to reach the plaintiffs' premdeprived except upon compensation. The ises from the streets south of the embankright of abutting owners in the streets is not, ment. The only practicable roadway in front however, of that absolute character that they on Water Street is but a few feet in width, can resist or prevent any and all interference quite insufficient for a safe and convenient with the street to their detriment, or which way to and from their lot. can be asserted to stay the hand of the municipality in the control, regulation, or im provement of the streets in the public interests although it may be made to appear that the privileges which they had theretofore enjoyed, and the benefits they had derived from the street in its existing condition, would be curtailed or impaired to their injury by the changes proposed. The cases of change of grade furnish apposite illustrations. They proceed on the ground that individual interests in streets are subordinate to public interests, and that a lot owner, although he may have built upon and improved his property with a view to the existing and established grade of the street, and relying upon its continuance, has no legal redress for any injury to his property, however serious, caused by a change of grade, provided only

We think the public cannot justly demand such a sacrifice of private interests, or justify such an appropriation of a street by a municipality in aid of a railroad enterprise. The Fobes Case gives no countenance to the defendant's contention. The limitations upon legislative and municipal authority, so carefully stated in the passages quoted from the opinion, are distinctly opposed to such an assumption. That case, and those of Kerr and Kellinger, were cases of railroad tracks laid upon the general grade of city streets as such grade existed when the tracks were authorized. There was no exclusive appropriation in fact of any portion of the surface by the companies, except that the rails were imbedded in the soil. The whole street in each of these cases remained open and unobstructed, except that the existence

of the tracks, and the operation of the respective roads thereon, rendered access to the lots of the abutting owners somewhat less safe and convenient than before. Here, as the evidence tends to show, the city of Buffalo, for the convenience, and presumably upon the application, of the defendant, devoted the center of Water Street to what is practically the exclusive use of the defendant, leaving for the use of the plaintiffs a narrow and inconvenient roadway, separated from the center of the street by a barrier therein impassable for carriages from east to west, opposite the plaintiffs' lot on Water Street, and only theoretically open from north to south, and then only by a circuitous route. It is quite probable that the general interests of Buffalo and of the larger public are promoted by this appropriation of the street, but it by no means follows that a lot-owner whose property is injured should bear the loss for the public benefit. We think the case falls within the principle of the Story Case, and that while the law now is that it is competent for the Legislature to authorize railroad tracks, either for steam or horse railroads, to be laid on the ordinary grade of streets, the fee of which is in the State or municipality, without making compensation to abutting owners for consequential injuries to their property, the Legislature cannot legally authorize structures for railroad purposes to be erected therein for the use and convenience of railroads which practically exclude the abutting owners from the part of the street so occupied, without compensating them for the injury suffered, and that it is not necessary that there should be an actual physical exclusion of the lot-owners from the use of that part of the street occupied by such structures in order to entitle them to a legal remedy. It is enough if such part of the street is practically and substantially closed against them for ordinary street uses.

Buffalo gives plenary power to the city to fix and change the grade of streets by formal proceedings, and provides that, when a grade is established or altered, a description of such grade shall be made and recorded by the city clerk. Charter 1870, title 9, §§ 1, 2, 6. The action of the common council, granting permission to the defendant to occupy Water Street, while it involved, as a consequence, the construction of an embankment in Water Street, did not purport to be an exercise of the power to change the grade of the street under the charter. It does not appear that any description was made or recorded, as is required when a new grade is established. It would be a strained construction to regard the action of the council as a change of grade of Water Street under the charter provisions. The defendant desired to lay its tracks in Water Street, and the other streets mentioned in the grant; and to enable it to do this, and to cross Commercial slip, an embankment in the street was authorized. The grade of Water Street was not altered, but the defendant was permitted to build an embankment in the street for its railway. The fact that what was done did effect a change in the grade of that part of the street occupied by the embankment does not prove that what was done was in the execution of the power to alter the grade of streets conferred on the council. The primary object of this power contained in municipal charters is to enable the municipal authorities to render a street more safe and convenient for public travel; to afford drainage; in short to adapt it more perfectly for the purposes of a public way. It is claimed that the city under this power could lawfully authorize an embankment in part of the street, leaving the other part on a lower level. We are not called upon to say whether there is any limit to the exercise of municipal authority, or that they cannot, in exercising the power to establish and alter the grade of The power conferred by the charter of streets, raise an embankment in a part of a Buffalo upon the common council, to "per-street, if in their judgment this will promote mit the track of a railroad to be laid in, the public convenience and the purposes of along, or across any street or public ground," the street as a highway. But we think they (Laws 1870, chap. 519, tit. 3, § 19,) must be cannot, under the guise of exercising this construed as subject to the qualification that power, appropriate a part of a street to the no property rights of abutting owners are the exclusive, or practically to the exclusive, thereby invaded. The present controversy use of a railroad company, or so as to cut off could not have arisen prior to 1875, when the abutting owners from the use of any part of plaintiffs were owners of the fee to the center the street in the accustomed way, without of Water Street. They would then, under making compensation for the injury susthe settled law, have been entitled to com-tained. pensation. The city of Buffalo, having in We have held that the authority conferred that year acquired, for the nominal consider by the General Railroad Law upon railroad ation of five cents, the technical fee in the companies to cross highways in the construcstreet, proceeded afterwards to authorize the tion of their lines authorizes their construclaying of the tracks in question, and it is now tion on, over, or below the grade of the claimed that this change in the title defeats highway crossed, and that incidental changes the plaintiffs' right to compensation. This of the grade of the street, rendered necessary is probably true if what has been done by the to accommodate railroad crossings, gives no defendant under license of the city was sim-right of action to abutting owners who may ply the laying of its tracks on the surface of the street at its ordinary grade; but this was not the character of the change effected.

The second proposition of the counsel of the defendant, that the building of the embankment was a mere change of grade of Water Street, made under the authority of the city, is, we think, untenable. The charter of

sustain injury. Conklin v. New York, O. & W. R. Co., 102 N. Y. 107, 3 Cent. Rep. 194. The practice of permitting railroads to cross highways is coeval with the introduction of the railroad system in the State, and the decision comports with the general understanding of the bench and the bar. In case of railroad crossings the highway is left as