THIS action was brought to recover damages of the defendant for injuries alleged to have been sustained by the elevation of a part of the roadway of Commercial street, in the city of Buffalo, in front of her premises, which she alleges to be an unlawful encroachment upon the street, an obstruction to her lawful rights in it, and a nuisance. The facts are that the defendant railroad was laid through Water street, and, where it intersected Commercial street, was constructed upon an embankment about five feet and nine inches above the former grade of Water street, made necessary in order to cross Commercial slip. In order to permit of travel upon Commercial street over the railroad at this intersection of the streets, it was necessary to raise the grade of Commercial street on either side of Water street; and this elevation of the grade of the street extended in front of, and nearly the whole length of, the street line of the plaintiff's premises. The embankment was within about a foot of plaintiff's sidewalk, and was some twenty feet in width. The plaintiff did not abut upon Water street, and her title to her lands was bounded upon Commercial street by the line of the street. As an abutting owner upon Commercial street, she bases the right to recover damages for the obstruction of the roadway in front of her premises, practically, upon the ground that if the construction by defendant of its embankment in Water street was illegal as to abutting owners there, the illegality of its act extended to the grading up of Commercial street, and in such degree as to subject it to liability to injured property owners in that street. An appeal from judgments recovered by her in the superior court of Buffalo was heard by this court in its second division, 120 N. Y. 661, 24 N. E. Rep. 1020;) and the judgments were reversed, expressly upon the authority of our decision in the case of Ottenot against this same company, (23 N. E. Rep. 169,) and a new trial was ordered. Upon the new trial the jury rendered a verdict for the defendant, by the direction of the trial judge. The defendant appealing to the general term of that court, the judgment was reversed, and it now appeals to this court from the general term order of reversal. Rogers, Locke & Milburn (John G. Milburn, of counsel), for appelO. C. De Witt (Geo. W. Cothran, of counsel), for respondent. VOL. VII-66 lant. GRAY, J. (after stating the facts.) The only difference between the facts of this case and that of the Ottenot case, 119 N. Y. 603, but fully reported in 23 N. E. Rep. 169, is that Ottenot's premises were on the opposite side of Commercial street, and the embankment in the street did not extend so as to entirely cover his side of the street; a fact, however, which can have no bearing upon the legal aspect of the question presented. Though the members of this court did not all concur with the opinion which was delivered in the Ottenot case, they concurred in the result rerched, on the ground of there being another remedy, as also because of error in the admission of evidence as to damages. That other remedy was referred to in the opinion as being given by a certain provision of the city charter, providing for compensation to abutting owners under certain conditions, where damaged by alterations in the grade of a street. Therefore, while the members of the court failed to concur with the opinion in the general discussion of the question of the defendant's liability to plaintiff, all did agree that the defendant was not liable in damages, inasmuch as the construction in Commercial street was a change in the grade of the street, for any injury from which a remedy was given under the provisions of the city's charter. The position, then, is this: The concurrence of views in the Ottenot case being that there was a change in grade of the street, and hence, no liability on the part of the company, can we now sustain this reversal by the general term without overruling the Ottenot decision, and likewise the decision of the second division of this court, which held the present case disposed of by the Ottenot case? If we are prepared to do this, we must still go further, and hold that the rule laid down in Conklin v. Railroad Co., 102 N. Y. 107; 6 N. E. Rep. 663, is no longer authoritative. The general term opinion holds what seems to me a rather strange view of our recent decision in the case of Reining against this same defendant (128 N. Y. 157; 28 N. E. Rep. 640). It was supposed by that court that its effect was to so far modify previous views with respect to the legality of the structures in Water and Commercial streets as to leave the general question open to further examination, notwithstanding the Ottenot case. Proceeding, thereupon, to consider the decisions in the Conkling case, supra, and the Uline case, 101 N. Y. 98; 4 N. E. Rep. 536, a distinction was deemed to exist between them and the Buffalo cases, in that the railroad, in the former cases, was a lawful structure, whereas, in these cases, on the strength of the view taken of the opinion in the Reining case, the construction in Water street was such an illegal appropriation of the street, and so unauthorized an act, as to constitute the structure a nuisance, not only as to property owners upon the street, but as to those upon Commercial street who were injuriously affected by the raising of the grade of the street to meet the railroad grade. The Reining Case has been quite misapprehended by the court below. That case is no more controlling upon the disposition of the present one than was the Ottenot Case upon the Reining Case, as was remarked by Judge Andrews, who wrote in the Reining Case. The plaintiffs in that case were property owners upon Water street; and their right to recover compensation was placed upon the ground that the railroad company had practically excluded them from the use of the street by the presence of the railroad upon the embankment, and had thus invaded a legal right belonging to the abutting property owner. The reasoning of the decision was that, while it was quite probable that the general interests of Buffalo and of the public were promoted by the appropriation of the street, it by no means followed that a lot owner whose property is injured should bear the loss for the public benefit. The learned judge said that the public cannot "justify such an appropriation of a street by a municipality in aid of a railroad enterprise," and that "the legislature cannot legally authorize structures for railroad purposes to be erected [in streets] cally exclude the abutting owners, sating them for the injury suffered." Again, referring to the power conferred in the city charter with respect to streets, he held that the city "cannot, under guise of exercising this power, appropriate a part of a street to the exclusive, or practically to the exclusive, use of a railroad company, or so as to cut off abutting without making compensation," etc. The opinion pointed out clearly the distinction between the case of a change of grade in the street, merely, and the case then at bar, where the object of the elevation of an embankment in the street was to subserve the railroad use, which was practically, if not owners, * * * * * * * * * which practiwithout compen wholly, exclusive. It was because of that distinction that I concurred with Judge Andrews in his opinion; conceiving that a property owner not abutting upon Water street had no right to complain of a change of the grade in his side street, which a new and lawfully authorized use of Water street had rendered necessary in the interests of the general public. The Reining Case has not modified any existing rule of law, as laid down in the Uline, Conklin, and Ottenot Cases. It did not hold that the embankment in Water street for the railroad accommodation was illegal, or that it constituted an invasion of the rights of any one, save as to those of property owners abutting on Water street. It distinctly recognized the existence of the railroad and of this embankment as being under lawful authority; but for injuries occasioned to the property rights, within the principle of the decision in the Story Case, 90 N. Y. 122, an abutting owner could not legally be deprived of his right to compensation by the legisla ture. As the Reining Case in no sense overruled the Otternot Case, the question is to day the same as it was when we had decided the Ottenot case; and I do not believe we could, with any appearance of consistency, sustain this plaintiff's right to recover compensation from the railroad company, when we denied it in the other case. Nor do I think we can overlook the fact that the Conklin case is a controlling authority upon the case before us. The opinion in the Conklin case was concurred in by all the members of the court. There the railroad company, in crossing a highway, constructed its road through a deep cutting, over which it built a bridge, to which, by embankments on either side of the cutting, the highway was graded up, so as to permit the continuance of the public travel as before. The plaintiff's property abutted on one of the embankments, and he also owned the fee to the center of the highway so changed, but his right to compensation was, nevertheless, denied; the grounds for the decision, in substance, being that a change of grade invades no private right, and, whatever the inconvenience to the abutting owner, it takes from him no property right for which he has not been compensated. Judge Finch, who delivered the opinion, remarked that, if the highway "became such by dedication, compensation for the easement was expressly waived. If taken by eminent domain, the compensation paid covered all the damages sustained, among which were necessarily embraced such as might flow from a change of grade required for the public use or convenience." "The right of the legislature," he said, "to permit a railroad company to cross a public highway, and either upon the same or a different grade, is, of course, conceded. In the latter case a corresponding change in the grade of the highway becomes necessary." The opinion proceeds to hold that the duty of making that change being imposed by statute upon the railroad company, instead of being left to the commissioners of highways, the company, in the work of restoration, stands in the place of the highway commissioners, without any responsibility to abutters, and having all the official rights of highway commissioners. The logi cal sequence of the opinion of the court in the Conklin case is, obviously, to exempt a railroad company from liability for the consequences of a change of grade in city streets which is rendered necessary where intersected by the railroad structure, however great may be the inconvenience resulting to abutting property owners. The source of the authority of the railroad company in the Conklin case was the same as that under which the company has acted in this case. In either case, under the provisions of the general railroad act, the power is conferred to construct the railroad across any street or highway "which the route of its road shall intersect, or touch; but the company shall restore the street or highway," etc., "thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness." In the case of highways the consent of the commissioners, or an order of the supreme court, is required, while in cities the assent of the municipal authorities is to be had, and in the present case the giving of such assent was provided for in the city charter. It is thus evident that the source of the power' to change the grade of the street, to permit of carrying it over the railroad crossing, is in the general or public law, which creates a duty in that respect which is transferred from the local authorities to the shoulders of the railroad company, n the performance of which it stands in the place of the local authorities, with all their immunity from responsibility for any consequential damages, not attributable, of course, to negligence in the manner of performance. If, however, in performing this |