Williams v. State

Staley, Jr., J.

This is an appeal, from a judgment in favor of respondent, entered September 23, 1968, upon a decision of the Court of Claims.

The claim was brought to recover damages allegedly sustained by the claimants to their real property located on the easterly side of North Washington Street in the Village of Athens, County of Greene, as the result of the reconstruction in 1958-59 of State Highway No. 5367, also known as Catskill-Athens, Route 385. Claimants ’ property consists of an irregular parcel of land having depth of 250 feet and a maximum width of 186 feet, the frontage on North Washington Street being 146 feet. On this parcel there exists a stone dwelling house constructed in the year 1724 which is known as the “ Van Loon. Residence ’ ’ and which has been designated an historical landmark by the Department of Education.

Claimants purchased this property in 1948 for use as a residence and for which they paid the sum of $1,700, and they made substantial repairs after the acquisition of the property. The State prepared an appropriation map for the purpose of acquiring a triangular parcel of land northerly of the building for the 1958-1959 reconstruction of Route 385 which map was officially withdrawn on March 27, 1959 by reason of the vigorous opposition of claimants. This claim alleging a de facto appropriation; a change of grade; interference with easements and consequential damages, was filed on September 14, 1965 pursuant to section 30 of the Highway Law and an enabling act of the Legislature. (L. 1965, ch. 195.)

Prior to the reconstruction of Route 385 the sidewalk in front of claimants ’ building was at the same level as the entranceway to the building. After the reconstruction, the sidewalk grade had been raised 12 to 18 inches, resulting in claimants’ front door opening two steps below the sidewalk. The evidence establishes that the grade at the center line of the road pavement was not changed from the prior grade established in 1912.

The Court of Claims determined that there was no appropriation of claimants’ property, and that there was no change of grade within the meaning of the Village Law and granted the State’s motion to dismiss the claim. The testimony established that the sidewalk was moved about four inches easterly of its former location, and the easterly edge of the sidewalk is now five inches west of the southwest corner of the stone dwelling on claimants’ property. This testimony, however, did not establish that the sidewalk encroaches on claimants’ property or that it did not lie within the right of way of the highway.

The record sustains the finding by the Court of Claims that there was no taking of claimants’ property, and the main issue on this appeal is whether or not there was a change of grade of the highway abutting claimants ’ property resulting in compensable damages.

Claimants contend that the change of sidewalk grade caused severe drainage problems, loss of view, and substantially reduced the market value of the property. They claim that the change of grade in the sidewalk area is a change of grade within the meaning of section 159 of the Village Law and that, since the work was done by the State, they are entitled to recover any damages incurred by their property as the result of the change or alteration of the grade. Section 159 of the Village Law imposes liability upon a village for damages resulting from a change in grade of a village street, made by the village, and subdivision 15 of section 30 of the Highway Law imposes such liability upon the State when the work resulting in a change of grade of a village street is done by the State. (240 Scott, Inc. v. State of New York, 18 N Y 2d 299; Selig v. State of New York, 10 N Y 2d 34; Mirro v. State of New York, 260 App. Div. 525, affd. 285 N. Y. 678; Matter of Reitz v. Village of Allegany, 270 N. Y. 525; Knights v. State of New York, 161 Misc. 552, affd. 251 App. Div. 781, mot. for lv. to app. den. 275 N. Y. 650; Mistretta v. State of New York, 201 Misc. 946, affd. 280 App. Div. 960.)

Although the State’s own witness testified that the grade of the sidewalk had been raised 12 to 18 inches, the State argues that if there were any damages to claimants’ property, they are not compensable inasmuch as the alteration was merely an adjustment of the sidewalk to the street and the grade of the street itself as established along the center line thereon has not been changed .

Where the facts establish that the construction performed consisted of minor adjustments to the road surface for purposes of repair or improvement, or consisted of causing the inequalities of the street to conform to an already established and existing grade, there was no change of grade within the meaning of the statute. (Matter of Whitmore v. Village of Tarrytown, 137 N. Y. 409; Comesky v. Village of Suffern, 179 N. Y. 393.) Thus, where the existing road is rough and irregular, the municipality works no change of grade by smoothing and topping the surface even though the effect is to raise or lower parts thereof since the act intended to be an improvement merely brings the road to a consistent level rather than to make it higher or lower. (Stenson v. City of Mount Vernon, 104 App. Div. 17; Farrington v. City of Mount Vernon, 166 N. Y. 233.)

The construction involved here cannot be considered as minor modifications of the existing road. The traveled portion of the highway was widened substantially and .repaved. The sidewalk was raised for the entire length of claimants’ property and was also widened. The tilt of the sidewalk was changed from a slope of one on four to one on two. This was more than slight or gradual improvement of the existing grade, but was, instead, a radical change by the State of the long-established grade; It is true that the traveled portion remained unchanged at center line, but the grade of the entire highway width need not be changed before compensation is required.

A highway is not limited to that portion traveled by vehicles, but also includes a sidewalk. (Phipps v. Village of North Pelham, 61 App. Div. 442.) The State’s own evidence here establishes that the sidewalk is within the boundaries of the right of way of North Washington Street. The grade of a street or highway includes the elevations of the entire highway as measured from a level line, and is not limited to the grade of the street or highway along its center line.

A change in grade of a sidewalk constructed on the highway is then a change in part of the grade of a highway, although the grade along the center line is not changed. Where a sidewalk is a part of the street, any material alteration of the grade of sidewalk is an alteration of the grade of the street within the meaning of the statute. (Phipps v. Village of North Pelham, supra; Matter of Nicholoy v. Village of Newark, 130 N. Y. S. 1033, affd. 155 App. Div. 941, app. dsmd. 209 N. Y. 561; 26 Am. Jur. 2d, Eminent Domain, § 230.)

In the Matter of Hunt v. Village of Otego (160 App. Div. 158, 159-160), the court, affirming an award of damages caused by a change of grade of a village street stated “ The change of grade was clearly more than a mere removal of irregularities or improvement of the street, as was the case in Matter of Bissell (57 App. Div. 61; distinguished in Phipps v. Village of North Pelham, 61 id. 442) * * * where a change of grade is not a mere correction of irregularities existing before the street was paved, it constitutes a change of the general grade. (Matter of Stillman v. Village of North Olean, 142 App. Div. 300).”

In the present case the level of the sidewalk has been raised 12 to 18 inches. This constitutes a change of grade within the meaning of section 159 of the Village Law, and claimants are entitled to be compensated for any damages resulting therefrom. In view of the absence of any findings of damages by the Court of Claims, the case must be .remitted for findings of damages resulting from the change of grade.

The judgment should be modified, on the law and the facts, in accordance with this opinion and the case remitted to the Court of Claims for further proceedings not inconsistent herewith, and, as so modified, affirmed, with costs to claimants.