
    
      In re Mayor, Etc., of the City of New York.
    
      (Supreme Court, General Term, First Department.
    
    January 18, 1889.)
    Eminent Domain—Public Use—Conflicting Eights.
    Where a railroad route has been laid out on land, but the road has not been constructed, a report of commissioners appointed to condemn the land for another public use will be confirmed, subject to any rights that the railroad company may have.
    Motion to confirm report of commissioners of estimate.
    Proceeding by the mayor, etc., of the city of New York, to acquire title to land for public parks. The question presented in this matter is whether the proposed route of the Suburban Rapid Transit Company is exempt from condemnation for the purpose of the parks. The Suburban Rapid Transit Company was formed under the rapid transit act, (Laws 1875, c. 606.) Its articles of association were filed in October, 1880, and subsequently, in the same month, a map of the projected route of the Suburban Rapid Transit Company was filed. This proposed route extends into the territory of what is known as the “Broux Park,” “St. Mary’s Park,” and “Cretona Park.” The act authorizing the condemnation of lands for these new parks was passed on June 14, 1884, and on September 19th of that year commissioners were appointed by the supreme court to condemn the lands covered by the projected route of the Suburban Rapid Transit Company within the lines of St. Mary’s park. These commissioners, having heard the evidence submitted on behalf of the railroad and of the owners, rendered their report in the spring of 1885, and this report was confirmed by order of the supreme court under date of May 4, 1885.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      B. JY. Harrison, for the Suburban Transit Company. Franklin Bartlett, for the mayor, etc.
   Per Curiam.

It would appear, from the discussion in regard to this question, that the position of the railroad companies is that simply because a route has been laid over a person’s lands the owner has no power to sell. We think that, until the land has been actually appropriated, an owner has the right to sell, and, until that has occurred, the legislature has the power to compel a sale by the owner for a public use. In both cases it is necessarily subject to vested rights which may have been acquired by preliminary proceedings, which are to culminate in the acquirement of the title. As to railroads which have been constructed, there is no question as to their lands, being already taken. These lands cannot be withdrawn from the public railroad use without specific legislation on the subject; but where no lands have been acquired, and the rights are inchoate, the owner may sell, subject to the execution of the act as against his grantee. So a public use may be authorized, and the lands taken and paid for as an ordinary grantee might take and pay for them, subject to the execution of the original act,—that is, if the legislature intended such use to remain unimpaired. If it did not, the city takes absolutely for a public use; if it did, the city will have to yield the property reserved by implication. This would be a natural solution on the part of the legislature, where large blocks of land are involved, small parts of which are impressed witli one use and the rest with another; there being necessarily great difficulty in specifying these small parcels in the act itself. We think, therefore, that the proper disposition would be to confirm the report, subject to the rights of those railroads, if any exist, to acquire title to the lands, as against the city, embraced within their proposed route. If they have a right to so acquire they have it preserved; and that disposes of this whole question equitably, as between the parties, without impairing any vested rights acquired, and protecting the rights of the owners as against rights which may be claimed to exist, and which may finally .appear never to have existed.  