
    The City of Albany, Resp’t, v. The Watervliet Turnpike Railroad Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Highway—Condemnation op lands fob uses op—Effect op subsequent laws.
    The defendant company, under the provisions of .Laws 1838, chap. 141, lawfully appropriated to itself, for the purpose of a highway, and made a turnpike road over the premises in question, and by Laws 1863, chap. 333, it acquired the additional right to construct and maintain a railroad track upon its turnpike road; it availed itself of both privileges, placing .the rails .in such-a manner as .to be unsuitable for a -city street. Meld, that although these privileges were created by statute, they were not beyond the control of the legislature, nor was the Lnd over which they were exercised exempt from the rights of eminent domain.
    3. Same—Albany (city of)—Proceedings to acquire land — When PARTY ESTOPPED BY.
    Subsequently, by Laws 1870, chap. 139, the city of Albany was extended so far as to take in a part of the turnpike and railroad, and, in 1884, by proceedings authorized by its charter, and instituted for that purpose, to which the defendant was a party, the plaintiff acq .ired title to the premises in question for the purpose of a public street. No appeal was taken from the order made upon such proceedings, and the defendant received the compensation awarded it. Meld, that the defendant was estopped from objecting to the exercise by the plaintiff of the right acquired under those proceedings.
    3. Same—Control op city over its streets.
    The plaintiff was vested with the control of the highway in question as one of its public streets, and had the right to control the position of the defendants’ tracks along its surface. . ,
    Appeal from a judgment, in favor of plaintiff, of the supreme court, general term, third department, upon a case submitted.
    
      Matthew Hale, for app’lt; £>. Cady Herrick, for resp’t.
    
      
       Affirming 12 N. Y. State Rep., 443.
    
   Danforth, J.

Upon facts stated by the parties, the supreme court adjudged that the city of Albany was “ vested with the control of the highway,” in question, “as one of ” its “ public streets,” and ordered the defendant to remove its tracks between the present north bounds and the former north bounds of that city, and replace them with rails laid flush with the grade of the street, and in such position “as to leave a passage-way for vehicles on each side thereof.” The appellant’s contention is, that this judgment is in disregard of franchises acquired by it under the provisions of chapter 141 of the Laws of 1828, and chapter 233, of the Laws of 1862. Under the first act it lawfully appropriated to itself, “for the purpose of a highway,” and made a turnpike road over the premises in question, and by the second it acquired the additional right to construct and maintain a railroad track upon its turnpike road. It availed itself of both privileges, but so placed its tracks that no vehicle could pass to the east, and its rails rose above the surface of the road so as to impede passage across them. They, therefore, were unsuitable for a city street; although these privileges were created by statute, they were not beyond the control of the legislature, nor was the land over which they were exercised exempted from the right of eminent domain.

The plaintiff’s claim stands upoii the authority of both. Prior to 1870, the premises so occupied were part of the town of Watervliet; but in that year (Laws of 1870, chapter 139), the north boundary of the city of Albany was extended so as to take a mile and a quarter of the turnpike and railroad, and in 1884, by proceedings authorized by its charter (Laws 1883, chapter 298), and instituted for that purpose, and to which the defendant was' a party, the plaintiff acquired title to the premises in question for the purpose of a public street. No appeal was taken from, the order made upon such proceedings, and the defendant received the compensation awarded it. - This acquiescence on the part of the defendant, and voluntary acceptance of the award estops it from now objecting, if objections in fact existed, to the exercise by the plaintiff of the right acquired under those proceedings. The defendant thus ratified the award of the commissioners and consented to the improvement and regulation of the street by the city for city purposes, as other city streets were regulated. The city had the right to take the land on making payment, and the plaintiff could not resist, its control after acceptance of compensation. To exercise the rights and franchises as originally granted would disregard, not only the-intention of the- legislature as expressed in the statutes above-cited, but wholly defeat the very object of the proceedings, which were taken by its authority.

The court below were of the opinion that this was not permissible, and the judgment appealed from, went on that construction. We concur in the opinion expressed by them and think the appeal should fail, and the judgment be affirmed.

All concur, except Earl and Peckham, JJ., not voting.  