Opinion
November 11, 1942.
Appeal from Court of Claims.
Claimants were the owners of a building located on the southwest corner of Railroad avenue and Market street in said city. The tracks of the Erie Railroad ran at grade along Railroad avenue, and to eliminate grade crossings an elevated structure was constructed in front of claimants' premises to carry these tracks. Claimants were awarded $3,150 as damages for the permanent obstruction of and interference with easements of light, air and access appurtenant to their property. No appeal was taken from this part of the judgment. They were also awarded $1,500 for diminution in the rental value of the premises during the progress of the work because of obstructions in the street. Judgment and award appealed from affirmed with costs. Hill, P.J., Bliss, Schenck and Foster, JJ., concur; Heffernan, J. dissents in a memorandum.
I dissent and vote to reverse that part of the award from which the State has appealed. The claim arises out of the elevation of the tracks of the Erie Railroad Company on Railroad avenue in the city of Elmira. This work was being done by the State in the course of a grade crossing elimination project. The property of respondents has a frontage of 105 feet on Railroad avenue. During the progress of the work the roadbed of the street was closed to vehicular traffic. The court below has found, and we are bound by that on this appeal, that during the progress of the work the sidewalks were open to passage and repassage by pedestrians. There is no claim that the work was unreasonably or unnecessarily prolonged. Likewise there is no proof of any diminution in the value of respondents' property. Inconvenience, expense or lack of business occasioned to respondents by the temporary obstruction of a public highway made necessary by a public improvement furnishes no basis for cause of action against the State. The State had a perfect right to temporarily close this highway during the construction of the improvement and any damage which respondents may have suffered is damnum absque injuria.