Judges: CUDDEBACK, J.
Filed Date: 1/18/1916
Status: Precedential
Modified Date: 4/15/2017
The action was brought to recover damages resulting to the plaintiffs from changing the grade of Columbia street in the city of Rensselaer, upon which street the lands of the plaintiffs abut.
For a period of thirty-eight years before the change of grade complained of, Columbia street was carried over the defendant's railroad tracks on a bridge, and there was a slight grade or elevation in the street as it approached the railroad bridge in front of the plaintiffs' land, which lies next to the defendant's railroad tracks. The approach to the bridge did not occupy the whole width of the street, and there was a space about eighteen feet wide in front of, and on the same level as, the plaintiffs' land, which afforded easy access thereto.
By its charter (Laws of 1897, chap. 359) the common council of the city of Rensselaer was given charge and control of the streets of the city as commissioners of highways, with power to direct the filling in, leveling and grading of streets, and the construction and maintenance of bridges therein.
In 1909 the bridge over the defendant's railroad tracks was out of repair and unsafe for public travel, and the common council of the city directed the railroad company to repair the same. The railroad company prepared plans for the reconstruction of the bridge with a clearance of sixteen feet two inches above the top of the rails. Two sets of plans prepared by the company were disapproved by the common council as not sufficiently clearing the railroad tracks. Thereafter, and in 1910, the defendant submitted plans for the reconstruction of the bridge with a clearance of twenty-one feet above the rails, and with a span forty-six feet longer and ten feet wider than the old bridge. These plans were approved by the common council of the city, and a contract under *Page 35 seal between the defendant and the city was made which authorized the defendant to reconstruct the bridge in the street, and which provided, among other things, as follows:
"The party of the second part [the railroad company] expressly covenants and agrees that in the event of any damage resulting from the ``work' as it progresses, or thereafter, as a result or in consequence thereof, or from any matter or thing connected therewith, arising therefrom, to any person or property, including damage resulting from change of grade of street, being approaches to said bridge, it will pay and liquidate the same at its own expense and assume the liability therefore, and in the event of any action or actions, proceeding or proceedings, of any kind or description being brought against the city of Rensselaer, by reason of, or on account of, or growing out of said ``work,' or its construction, or to prevent the performance thereof, or anything connected therewith, and the said party of the second part will at its own expense defend the same, and will pay any judgment or award recovered therein, and will in all respects fully indemnify and save harmless the said city, its officers, agents and representatives from any and all costs, expenses, payment of judgment, to be recovered or incurred in such action or actions, proceeding or proceedings."
Pursuant to this contract the defendant reconstructed the bridge over its tracks, making the same longer and wider than the old bridge, and also about five feet higher, to give the clearance contemplated by the plans. The defendant also, as provided by the plans, placed an embankment in front of the plaintiffs' premises on Columbia street, occupying the whole width of the street, and extending along the street for a distance of about two hundred and sixty-five feet up to the new bridge. The embankment was fifteen feet high in front of the plaintiffs' property, and it obstructed and very seriously *Page 36 interfered with the access thereto from Columbia street, and caused material damage to the plaintiffs.
The plaintiffs raise no question as to the common-law rule that the owner of land abutting on a street or highway is not entitled to compensation for a change of grade therein when lawfully made for a public purpose. (Radcliff's Executors v. Mayor, etc., ofBrooklyn,
Section 81 of the charter of the city of Rensselaer (Laws of 1897, chap. 359) has not the legal force asserted by the plaintiffs, and is not sufficient to impose liability for a change of grade in the street contrary to the provisions of the common law. Section 81 provides as follows: "Whenever the common council shall intend to lay out, alter, widen, extend, contract or discontinue any street, lane, alley, highway or public grounds in said city, and the lands of any person or corporation, or any right or easement therein will be necessary for that purpose; and whenever the common counsel shall intend to acquire lands, rights or easements therein for any other purpose mentioned in this act, they shall" proceed as in the charter expressly provided and may take and appropriate property as required, upon making compensation therefor. It seems clear that this is only a delegation to the municipality of the power of eminent domain and not an imposition of liability for a change of the grade in the street.
It has been held in some cases that when the change of grade in the street is not made for a public purpose, but *Page 37
for the benefit of a private corporation, as the railroad company, the private corporation may be liable for the damages sustained. (Reining v. N.Y., L. W. Ry. Co.,
The third claim of liability asserted by the plaintiffs rests, I think, on firmer ground. The contract between the city and the railroad company contains on the part of the defendant a covenant that in the event of any damage resulting to any person or property from the work done, "including damages resulting from change of grade of street, being approaches to said bridge, it will pay and liquidate the same at its own expense and assume the liability therefor." By referring to the provisions of the contract hereinbefore set forth which contains this clause, it will be found that it amounts to more than a covenant to indemnify the city. It is in addition an assumption of liability for damages which might result to any person from carrying out the contract for the bridge.
I can see no reason why the plaintiffs cannot recover under this provision of the contract, upon the theory of Lawrence v.Fox (
In order to bring the case within the doctrine of Lawrence v.Fox it must appear, first, that there was an intent on the part of the municipality to secure some benefit to the plaintiffs as the owners of land affected by the change of grade, and,secondly, that there was some obligation or duty owing from the municipality to the landowner which gives the latter a legal or equitable claim *Page 38
to the benefit of the contract. (Vrooman v. Turner,
The first element of liability, viz., an intent on the part of the municipality to secure some benefit to the owners of the abutting property affected, is apparent. The words of the defendant's contract can be read in no other light than as showing an intention on the part of the municipality that the railroad company should assume liability and pay the damage certain to accrue to the abutting owner from change of grade in the street. These words can only relate to damage suffered by the plaintiffs and by other landowners similarly situated, if any there were, whose property abutted on the street where the change of grade was made.
The second element of liability, viz., some obligation or duty owing from the municipality to the owner of the abutting property, is also apparent. It exists in the fact that the city is under some obligation to protect its inhabitants, and when it enters into a contract for public work, which may result in damage to one of such inhabitants, for which otherwise he would be without remedy, the municipality may require the contractor to compensate the person injured.
In Pond v. New Rochelle Water Co. (
This decision was approved in Smyth v. City of New York
(
The principle of these decisions supplies the elements of liability on the part of the defendant under the doctrine ofLawrence v. Fox (supra) and leads to the conclusion that the determination of the Appellate Division should be affirmed, with costs in all courts, and that judgment absolute should be rendered against the defendant upon its stipulation as provided by law.
WILLARD BARTLETT, Ch. J., HOGAN, CARDOZO and POUND, JJ., concur; CHASE and COLLIN, JJ., dissent.
Order affirmed, etc.
Pennsylvania Cement Co. v. Bradley Contracting Co. ( 1925 )
Collins Construction Co. of Texas v. Taylor ( 1963 )
Parisian Live Dyers & Cleaners v. Springfield ( 1925 )
E.G.L. Gem Lab Ltd. v. Gem Quality Institute, Inc. ( 2000 )
PICCOLI A/S v. Calvin Klein Jeanswear Co. ( 1998 )
c-w-regan-inc-a-new-york-corporation-and-nager-electric-company ( 1969 )
Freigy v. Gargaro Company, Inc. ( 1945 )
Maggio v. Leeward Ventures, Ltd. ( 1996 )
Akcess Pacific Group LLC v. Winstar Communications Inc. ( 1999 )