
    THEODOSIUS STRANG, Plaintiff and Respondent, v. THE NEW YORK RUBBER COMPANY, Defendants and Appellants.
    The fee of lands taken under that part of the Act of 1813, which relates to the opening and laying out streets (Laws of 1813, vol. 2, p. 408), as amended by Act of 1818 (Laws of 1818, p. 196), does not pass to the Corporation until an acceptance of the, land by some affirmative act by the Corporation, unless the Corporation neglects so to accept during the fifteen months, succeeding the confirmation of the report of the commissioner. In case the Corporation so neglects, the fee will not pass until at least the expiration of said fifteen months.
    Before Monell, Jones, and Fithian, JJ.
    [Decided March 12, 1869.]
    This case was tried before Mr. Justice Barbour and a jury.
    . On the 6th of February, 1866, plaintiff leased to defendant the store 103 Liberty street, for two years and nine months, from May 1, 1866, at the annual rent of $1,000, payable quarterly The defendant entered into possession of the premises and used and occupied them until after February 1,1868.
    The defendant having neglected to pay the quarter’s rent which became due February 1, 1868, plaintiff brought this action to recover it.
    The defense is that the Mayor, Aldermen, and Commonalty of the City and County of New York instituted a proceeding in the Supreme Court, under that part of the act of 1813 entitled “An act to reduce several laws, relating particularly to the City of New York, into one act,” which refer to the opening and .laying out streets (Laws of 1813, vol. 2, p. 408), and the various acts amendatory thereof, for the extension of Church street, from the southerly side of Fulton street to Morris street; that the premises in question were included in the lands taken by the said proceeding for said extension; and that the report of the commissioners of estimate and assessment in that proceeding were finally confirmed by the Supreme Court on the 30th of December, 1867.
    That part of the report of said commissioners which relates to the premises in question, is in the words and figures following, to wit:
    “And we, the said commissioners, do further report, that all that certain lot, piece, or parcel of land, situate, lying, and being in the City of New York, and next hereinafter described, will be required to be taken for the extension of Church street, from the southerly side of Fulton street to Morris street, as aforesaid, that is to say, all that certain lot, piece, or parcel of land, situate, lying, and being in the City of New York, and bounded, described, and containing as follows, to wit:
    “ Beginning at a point on the northerly line or side of Liberty street, distant three hundred and twenty-three feet one and one half inches westerly from the westerly line or side of Broadway; and running thence westerly along the northerly line or side of Liberty street twenty-six feet and nine inches to the easterly line or side of lot No. 84 on the Commissioners’ Damage Map; thence northerly along the easterly line or side of lot No. 54 on said map one hundred and seventeen feet and eight inches to the southerly line or side of lot No. 57 on said map; thence easterly along the southerly line or side of lots Nos. 57 and 56 on said map twenty-eight feet and three inches to the westerly line or side of lot No. 52 on said map; and thence southerly along said last-mentioned line one hundred and eighteen feet and nine inches to the point or place of beginning.
    “And we, the said commissioners, do further report that, as far as we could ascertain, Theodosius Strang is seized in fee' of, in, and to the last above-described piece or parcel of land; that the same is known by the number Fifty-three on the Commissioners’ Damage Map hereinbefore mentioned. And we, the said commissioners, do further report, that we have estimated the loss and damage of the said Theodosius Strang, as the owner of said piece or parcel of land, last above described, by and in consequence of the extension of Church street, from the southerly side of Fulton street to Morris street, as aforesaid, and of the owner relinquishing the said last above mentioned and described piece or parcel of land, with the improvements thereon for that purpose and removing the same therefrom, and of the taking of the said piece or parcel of land for the purpose aforesaid, to amount to the sum of thirty-seven thousand dollars.
    “And we do further report, that any buildings now situated on said piece or parcel of land will be required to be removed therefrom.
    “And we do further report, that the premises last above-described and mentioned are subject to a mortgage for the sum of twenty-four thousand dollars, now held and owned by the heirs of Charles Adriance.
    “And we do further report, that the said premises are also subject to a mortgage for the sum of sixteen thousand dollars, now held and owned by the Bank for Savings.
    “And we do further report, that the New York Rubber Company now hold and own a lease upon and affecting the premises last above described and mentioned, and that we do estimate and assess the loss and damage of the New York Rubber Company, the said-lessees of said premises, by and in consequence of the said intended improvement, to amount to the sum of one thousand dollars.
    “And we do further report, that the Central Railroad Company of blew Jersey also now hold and own a lease upon or affecting said premises, and that we do estimate and assess the loss and damage of the Central Railroad Company of blew Jersey, said lessees, by and in consequence of the said intended improvement, to amount to the sum of five thousand dollars.”
    It was admitted that the Corporation had not paid the award to the plaintiff, and, though requested, had refused to do so up to the time of trial, and that the Common Council had taken no action whatever, in reference to said extension of Church street, since said 30th day of December, 1867, when said report was confirmed.
    It was admitted that the defendants had continued in occupation of the premises mentioned in the complaint down to the time of trial.
    It was admitted that if the $1,750 rent claimed in the summons was apportioned from November 1 to December 30 (the date of the confirmation of the report), the amount
    woxrld be......................................$1,133 33
    And that interest from that time to the time of trial.. 35 85
    Making...................................$1,169 18
    And that the apportionment for the period from the confirmation of the report to the 1st of February,
    1868, would be..'......................$566 67
    Interest on which to trial is..........13 96
    Making................................... 580 63
    And that the sum of the two totals is..............$1,749 81
    For which plaintiff asked a verdict.
    The Court directed a verdict to be rendered for the plaintiff for that amount, to which defendants’ counsel duly excepted. And thereupon the jury, pursuant to such direction of the Court, found a verdict for the plaintiff for $1,749.81.
    Judgment was entered on said verdict, and the defendant appealed therefrom to the General Term.
    Defendants’ counsel claimed as matter of law that, by the taking aforesaid, the fee simple of the whole of the premises, being the lands and premises mentioned and described in the lease, and all the right, title, and interest of the plaintiff to the rents, issues, and profits thereof, became absolutely vested in the said Mayor, Aldermen, and Commonalty of the City of New York, and that on the final confirmation of the report of the said commissioners the lease became void, and the estate thereby created ceased, and all the estate, right, title, and interest of the plaintiff to said lands and premises, and the reversion thereof, and to the rents and profits of the same, were absolutely transferred to, and became vested in, the said Mayor, Aldermen, and Commonalty of the City of New York, and that they have ever since been, and still are, seized in fee of all the said lands, and that the said commissioners awarded a just compensation to the plaintiff for the said lands and premises, so taken as aforesaid, and described in said lease.
    
      Mr. B. F. Lee for appellants.
    The covenant to pay rent became absolutely void.on the final confirmation of the report of the commissioners, on December 30,1867, by the clear and explicit terms of the act in relation to street openings, Laws of 1813, ch. 86, sec. 181 (Valentine’s Laws, p. 1201), which provides that “ in all cases where the whole of any lot or parcel of land, or other premises under lease or other contract, shall be taken for any of the purposes aforesaid (i. e., streets, &c.), all the covenants, contracts, and engagements between landlord and tenant or any other contracting parties, touching the same or any part thereof, shall, upon the confirmation of such report in the premises as shall be confirmed by the court aforesaid, respectively cease, determine, and he absolutely discharged.”
    Independently of the above clauses of the act of 1813, the right of the plaintiff to maintain an action to recover the rent was taken away by the decree confirming the report of the commissioners, on December 30, 1867. The plaintiff’s title to the premises absolutely ceased, and the entire fee simple vested in the Mayor, &c., of New York, on the confirmation of said report." That was final and conclusive “ upon the owners, lessees, persons,” &c., mentioned in the report, including the parties to this action (Laws of 1813, ch. 86, sec. 178; Valentine’s Laws, p. 1198; Hoffman’s Treatise on the Corporation, p. 289).
    The whole title to the reversion having become vested in the corporation, the right of the plaintiff to the rent went with the title. The mere transfer of the title to the reversion carried with it the rent (1 Washburne on Real Prop., *p. 337).
    No action whatever, after the termination of the proceeding, is needed to vest the title to the premises in the City. On the confirmation of the report, it becomes at once seized of the whole title, and “ may immediately, at any time or times thereafter, take possession of the same, or any part or parts thereof, without any suit or proceeding at law for that purpose” (Laws of 1813, chap. 86, sec. 178, Val. Laws, p. 1198).
    The time at which the title vests in the corporation cannot be affected by the provisions of the constitution forbidding the taking of private property for public use without compensation. It is not necessary that property so taken should be actually paid for before the appropriation of the lands. It is enough that the owner has an adequate remedy by which he can obtain compensation through the medium of the courts of justice (Court of Errors, 1837, Bloodgood v. Mohawk and Hudson R. R.R. Co., 18 Wend., 9).
    
      Mr. John E. Parsons for respondent.
    By the terms of the report, the plaintiff remained the owner of the building, or store, for the use of which the rent is due. That building has a value. The effect of the report is that, for relinquishing the land taken, the plaintiff receives a certain award in money, and the building, whatever may be its value, which he is to remove." The retention to him, therefore, of the building, is a substantial part of the compensation he receives for, and without which he could not be deprived of, the land. The rent in question is really due for the use of the building. The land, incumbered by a building upon it, could not be separately occupied, and so produces no part of the rent.
    The fee of the land has not yet passed from the plaintiff»
    Under the act of 1813, the city can only acquire by hostile proceedings, as here, that land or interest in land which is necessary for a public use, and can only take it for that purpose. The city has not yet paid. The act of 1813, sec. 183 (Davies’ Laws, p. 538) provides that within four months after the confirmation of the report the City shall pay.
    While it may be safely conceded, so far as this cause is concerned, that the provision made for future payment relieves the act of the charge of not providing compensation to the owner for the land to he taken, and so that it does not necessarily violate the constitutional provision, it is insisted that the act under the constitution can have no such effect as before payment to pass a title in fee, with right to future rents, until the land shall be put to the public use (Baker v. Johnson, 2 Hill, 342; Rexford v. Knight, 1 Kern., 308, 314; People v. Hayden, 6 Hill, 359,; Smith v. Hellmer, 7 Barb., 416, 426). The effect of the act of 1818 is to postpone the acquisition by the city of the land during this period of suspension.
    Any other construction would permit the owner to he deprived of fifteen months’ use of his land, which of itself is property, both without compensation and for a private use, in direct violation of the constitution (Const. of 1822, art. 7, sec. 7; Const. of 1846) art. 1, § 6.
    Liability to pay follows from the acquisition of title, and the only consistent interpretation which can be given to the act of 1818 is that for fifteen months the city shall not be compelled • to-take and pay for the land.
    Until the expiration of that period or actual possession by the city, the owner therefore remains entitled to possession of the land and to its rents, issues, and profits.
   By the Court:

Jones, J.

The act of 1813 provides (R. L. of 1813, vol. 2, p. 414) that, on the confirmation of the report of the commissioners of estimate and assessment, “ the Mayor, Aldermen, and Commonalty of the City of New York shall become and be seized in fee of all the land, hereditaments, tenements, and premises described in such report, that shall or maybe so acquired for the purpose of opening, laying out, and forming, extending, enlarging, or otherwise improving the streets or avenues so to be opened, laid out, and formed, extended, enlarged, or improved, the same to be appropriated, converted, and used to and for such purposes accordingly. And thereupon, the said Mayor, Aldermen, and Commonalty, or any person or persons acting under their authority, may immediately, or at any time thereafter, take possession of the same, or any part thereof, without any suit or proceeding at law for that purpose. In trust, nevertheless, that the same be appropriated and kept open for or as part of a public street, avenue, square, or place forever, in like manner as the other public streets, avenues, squares, and places are, and of right ought to be.”

It is clear, from this, that the fee is passed simply to feed the specific trust, and that the Corporation takes the fee simply as trustee, upon and for that trust.

An acceptance of the trust is always a condition precedent to the passing of the legal title which is designed to feed it.

Such acceptance may be either expressed or implied, and if one be under legal obligation to accept, his acceptance would be implied from that fact.

Under the law of 1813, an acceptance of the trust, at the expiration of four months from the date of the confimation of the report, and perhaps at the date of the report, would be implied from the fact of their petitioning for the opening, &c., of the streets, &c., and from the obligation imposed on them by that law of paying for the land taken at the expiration of that four months.

But the act of 1818 (Laws of 1818, p. 196) appears to me to allow the Corporation at least fifteen months in which to accept the trust. That act is as follows:

“ That the Mayor, Aldermen, and Commonalty of the City of New York may suspend the opening, extending, enlarging, altering, and improving of any street, road, avenue, or public place which may be ordered to be opened, extended, enlarged, or altered in the .said city, in pursuance of the provisions of the act entitled ‘An act to reduce several laws relating particularly to the City of New York into one act,’ for such time or times as they shall think proper, not exceeding fifteen months in the whole, after the confirmation of the report of the commissioners of estimate and assessment; and farther, that the said Mayor, Aldermen, and Commonalty shall not be required to pay any sums of money which may be awarded to any person on account of the opening, extending, enlarging, altering, and improving of any such street, road, avenue, or public place until the expiration of four months after the expiration of the time or times which may be appointed by them, as aforesaid, for carrying the said improvements into effect.”

The trust upon which the land is to be received is to open, &c., the contemplated street, &c., and keep it open for and as a public street. The act of 1818 expressly authorizes the Corporation to defer entering on this street for a period not exceedinfifteen months from the confirmation of the report, and does not require the land to be paid for until after the expiration of four months from the time appointed by them for entering on the trust. There can be no acceptance prior to the expiration of that time, therefore, implied from the petitioning for the opening of the street or'the obligation to pay for the land. Indeed, the act of act of 1818 contemplates an express acceptance by an affirmative act if the Corporation intend to accept at a period prior to the expiration of the fifteen months, for in that event it makes the time of payment date from the term fixed by it by an affirmative act for entering on the performance of its duty.

I am satisfied,that this is the proper construction to be given to the provisions in question, contained in the acts of 1813 and 1818.

Since, then, the Corporation did not accept the trust during the eighteen months, the fee did not pass during that period.

This view gains great strength from the fact that, except upon' this construction, the act of 1818 would be unconstitutional, as taking private property for public use without just compensation, for it would result in taking from an owner of property the use of it for the period of eighteen months, without giving him any - compensation ' therefor, because - the period during which the Corporation might, under the act of 1818, delay the opening,&c., and the payment for the land, being indefinite, the commissioners would be unable to adjust the damages for the deprivation of the use of the property for that uncertain period and no substitute is provided for a compensation for such deprivation, in the way of interest on the amount awarded for the value of the land. The.primary rule that the language of the legislature is, if possible, to be interpreted in such manner as to make it consistent with the constitution (Bloodgood v. M. & H. R.R. Co., 18 W., p. 19), is applicable to the provisions in question,, and calls for the construction I have given to them.

A further suggestion may be made.

For a long time it was a mooted point whether an act which authorized the taking of private property for public use, before actual payment of a just compensation therefor, was constitutional.

It was, however, finally settled that if certain and ample provision he made by law, so that the owner can coerce payment of the compensation adjusted and awarded to him, through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay, the constitutional requirement for the making of just compensation is sufficiently satisfied (People v. Hayden, 6 Hill, p. 361).

This is substituting means for enforcing payment in place of actual payment.

Before such means can operate as a substitute, they must become perfected and ripened so as-to vest in the owner a present right of enforcement; until that time he has neither actual compensation by payment, nor the substitute for it, a right to enforce payment. On the principle, then, that a right to enforce payment is equivalent (so far as the constitutional requirement is concerned) to actual payment, payment is not made until such right has matured and become operative, and consequently the lands do not pass until that event occurs. It follows that, as, under the act of 1818, the right to enforce payment does not mature until four months after the expiration of the time which the Corporation may appoint for opening, &c., or until nineteen months after the confirmation of the report, the lands do not pass until one or the other of those events occur

It is certainly sufficiently onerous to hold by construction that one’s land may be taken without his consent," and he be paid therefor by a right of action resulting perhaps in litigation, without pushing the construction further, and holding that he may be deprived of his property for a longer or shorter period, without even a right of action for compensation.

In cases of great public emergency, it may be that private property may be taken, not only without making immediate compensation, but also without even providing a means whereby such compensation may be enforced. To what extent such doctrine may extend, and to what cases it is applicable, it is not now material to inquire, as the present is clearly not a case of great "public emergency.

Judgment affirmed, with costs.  