In re the Proceeding, under the Grade Crossing Elimination Act , 18 N.Y.S.2d 613 ( 1940 )

Per Curiam.

The appellant Western New York Water Company contends that the words “ incidental improvements connected therewith ” as used in the grade crossing amendment (State Const, art. VII, § 14), and in the enabling act (Laws of 1939, chap. 289) are intended to include the cost of the relocation of its water mains made necessary by a grade crossing elimination. Prior to the Constitutional Amendment, the common-law obligation of a utility to relocate its own structures at its own expense in connection with a grade crossing elimination program was definitely declared. (Transit Comm. v. Long Island R. R. Co., 253 N. Y. 345.) That common-law obligation continues until the Constitution and statute expressly provide otherwise. The common law must be held no further abrogated than the clear import of the language used absolutely requires. (Transit Comm. v. Long Island R. R. Co., supra; Bertles v. Nunan, 92 N. Y. 152, 158.) We find no express direction in the Constitution or in the enabling act that reheves the appellant of its common-law obligation. An inspection of the minutes of the Constitutional Convention reveals nothing which in our opinion indicates any intention on the part of the delegates' to transfer that cost to the public. If there is to be any change in the law as declared in Transit Comm. v. Long Island R. R. Co. (supra), it must, under our system of State government, come from the law-making authority and not from the courts.

All concur, except Dowling, J., who dissents and votes for reversal and granting of an order directing the Public Service Commission to grant the relief prayed for, in an opinion. Present — Crosby, P. J., Taylor, Dowling, Harris and McCurn, JJ.