In Re Whitmore v. . Vil. of Tarrytown

*413 Earl, J. It is provided in section 1 of chapter 113 of the Laws of 1883, under which this proceeding was instituted, that “ 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 maimer 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.” Section 2 provides that “ all the provisions of the General Railroad Act relative to the appointment of commissioners, their powers and duties, shall be applicable to the appointment of, and the powers and duties of commissioners appointed in pursuance of the provisions hereof.” Section 3 provides that all damages ascertained and determined under the provisions of the act, together with the costs of the proceedings, shall be a charge upon the village, town or other municipality chargeable with the maintenance of the street, highway or bridge altered or changed. We think the meaning, force and effect of this act were wholly misapprehended by the courts below. Before any proceeding can be instituted under the act, the grade of the street must have been “ changed or altered,” by or under the authority of the village. Before it can be said that the grade has been changed or altered there must generally have been some formal action by resolution or ordinance of the village fixing the new grade. There may, however, be exceptional cases where under peculiar circumstances a new grade may be established by directions given, or by acquiescence. Accord’ mg to the ordinary understanding of the language used in the act, there is implied some definite action, or at least some definite acquiescence fixing a new grade to which a street is either to be raised or lowered. If the street commissioner in a village should go upon a street and from time to time take a *414 few loads of earth from one place and deposit it in another, or for the purpose of repairing and improving a street should cut it down in one place and raise it in another, or dig out earth on the sides of the street for the purpose of widening the traveled bed thereof, by all these acts, although in the process of years they may work an actual change in the grade of the street, the grade is not changed or altered within the meaning of the act. Gould an adjoining owner, every time the street commissioner takes a yard of earth out of the street at one place and deposits it at another, thus causing an appreciable damage to his abutting property, institute proceedings under this act for the appraise, ment of his damages ? Such a construction of this act might involve a village in constant litigation with numerous owners of real estate along streets which are from time to time improved. In this case there is not an atom of evidence that the board of trustees of the village ever changed or altered the grade of this avenue after the year 1882. It appears that in that year persons living in the vicinity of the petitioner’s property and interested in the improvment of the avenue voluntarily made contributions of money and entered into a contract to have the grade of the avenue in front of this property altered, and upon their application the trustees of the village, on its behalf, contributed $300 toward the expense of the improvement, the total cost of which was $1,850. The whole improvement was in the hands of the citizens who inaugurated it, and the only action taken on the part of the village was the appropriation of $300 toward the expense thereof. The trustees did not fix or determine the grade, or have anything to do with the actual execution of the work. The street along the petitioner’s property was three rods wide. In making the improvement the persons engaged therein lowered the street in front of her property about six feet, to a width at the bottom of about twenty-five feet and at the top of the excavation about thirty-five feet, leaving an embankment at the original grade of about ten feet between the space .thus excavated and the line of her property. That improve *415 ment was completed in 1882. That work was done before the act of 1883 was passed, and the petitioner does not claim any damage for the change of the grade at that time. As the village assented to that improvement and aided in making it by the contribution of money, we must assume that the grade of the street was fixed as it was left by that improvement. There is no evidence whatever that that grade has ever since been changed or altered by any one. A large part of the earth in the embankment next to the petitioner’s property has since been removed, but the grade of the street has not been changed. The grade of the street having been established in 1882, it was not altered or changed by the cutting down of the embankment on either side of the street for the purpose of making the whole street conform to the grade thus established. Such an improvement of a street is not within the fair meaning of the statute a “ change or alteration ” of the grade thereof. But, furthermore, what "happened after 1882 to this avenue Was as follows: The embankment on the side of the street by the action of the elements would from time to time cave down and fill up the gutter on the side of the street, and the earth which fell into the gutter would be removed by the street commissioner; and occasionally, from time to time, he would take a few loads of earth from the embankment and put it elsewhere, and from time to time the citizens residing in the neighborhood, who desired sand or gravel, would dig and draw some of it away for their own private purposes. In these ways this embankment which was, after the improvement of 1882, as before stated, about ten feet wide at the top, was substantially carried away, although the traveled bed of the street was not actually widened, hi ow, was there a change in the grade of this street every time the street commissioner removed a yard or a few yards of earth ? Could the petitioner in each of these succeeding years have instituted a proceeding under' this act alleging a change of the grade of the avenue in front of her property ? When was the grade changed ? During all the years subsequent to 1882, the village took no *416 action whatever in reference to the grade of this avenue, and it does not appear that the trustees gave any directions whatever in reference to the same. Whatever earth was removed from the side of the avenue in front of the petitioner’s property by the street commissioner was from time to time removed by him in the exercise of his own judgment and in the discharge of his duties in the improvement and repair of the avenue. Gradually, by the action of the elements and the removal of earth thus made by the street commissioner and' other persons, this embankment was mostly cut away. But we 'think it is quite unreasonable to say that this constituted a Change or alteration of the grade within the meaning of the act. The. act was passed to meet cases where the grade of a street having once been established or naturally existing was, by act of the village, raised or lowered by ordinance or resolution, or some municipal action which effects a change of the grade within the ordinary meaning of that term. There was, therefore, no basis whatever upon any facts appearing in this record for the maintenance of this proceeding. If the street commissioner or other persons wrongfully interfered with the petitioner’s soil in the street, her remedy was against them for the wrong and not against the village under the act of 1883. It is said, however, that the village failed to appeal from1 the first order made by the court at Special Term, which determined that the grade had been changed and appointed commissioners to appraise the damages, and that, therefore, the defendant’s appeal must rest entirely upon the judgment entered upon the report of the commissioners of appraisal; and that the only questions which the village can now raise are those which relate to the amount of damages awarded. There are two answers to this contention. The village, in its notice of appeal from the final judgment awarding the damages, specified the order appointing the commissioners, and also appealed from that, and hence the appeal was in time under section 1316 of the Code. A further answer is that the record contains all the evidence and. proceedings upon the. *417 trial at the Special Term of the issue formed by the answer to. the petition and the findings of the trial judge upon that evidence. It also contains all the evidence given before the commissioners and the proceedings before them and them findings,, and also the proceedings taken upon their report. It does not appear in the record that the petitioner made any motion to dismiss the appeal from the first order, or made any objection that it should be entertained, and it was actually entertained at the General Term, and the order was there affirmed. We must, therefore, assume that that appeal was valid and effectual, and before the General Term without objection. We are, therefore, of opinion upon the whole case that the judgment of the General Term, entered upon the report of the commissioners and the order appointing them, should be reversed, with costs in this court and the Supreme Court to the appellant, and a new trial ordered at the Special Term of the issues formed by the answer to the petition. All concur, Maynard, J., in result. Judgment reversed.