
    
      In re Southern Boulevard R. Co.
    
      (Supreme Court, General Term, First Department.
    
    December 29, 1890.)
    Eminent Domain—Right to Compensation—Construction of Statutes.
    Laws N. Y. 1867, c. 290, § 24, provided for constructing the Southern boulevard, reserving to the owners of land taken therefor, in case of a subsequent grant by the legislature to any person or corporation of the right to construct a railway or tramway thereon, their rights “to claim and recover from such person or corporation the full value of all the land taken” from them for the boulevard, “to the same extent as if no such road had ever been laid out on said lands, ” etc. Held, that the provision constituted a contract between the state and such owners; and, although Laws 1887, c. 723, amending the provision, permitted the construction of such railway by any company organized under Laws 1884, c. 252, on obtaining the consent of owners of property and of local authorities required by that act, such a company could not acquire the right to lay and operate its road without paying to the owners the actual value of the land taken, as if no street had ever been opened.
    Appeal from special term, New York county.
    Application by the Southern Boulevard Railroad Company to acquire the right to construct and operate its road upon that part of the Southern boulevard which formerly belonged Paul Spofford, deceased. Commissioners appointed to appraise the compensation to be made to owners of lands to be taken made a nominal award of six cents. From an order confirming the report of the commissioners, the executors and trustees under the will of said Paul Spofford, deceased, and others, appeal. For proceedings to enjoin the construction of the road, see 4 N. Y. Supp. 388.
    Argued before Van Brunt, P. J., and Beady and Daniels, JJ.
    
      Stimson & Williams, (Wm. Pierrepont Williams, of counsel,) for appellants. Coudert Brothers, (John N. Lewis, of counsel,) for respondent.
   Van Brunt, P. J.

In 1867 the legislature passed an act to authorize the towns of Morrisania and West Farms to widen, make, extend, and improve a highway in said towns to be called the “Southern Boulevard,” and by the act commissioners were appointed with power to perform the several acts and duties therein prescribed. Among other things it was provided in said actas follows: “Sec. 24. Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard, and, except for the purposes of crossing the same, no railway or tramway shall be laid or constructed thereon, or upon any part thereof, by any persons or corporations whatsoever, without a special act of the legislature of the state for that purpose first had and obtained; and, in case the legislature of the state shall at any future time grant to any person or corporation the right to construct any rail or tram way upon said road or any part thereof, nothing in this act contained shall be construed to affect or cut'off the rights of the several owners of land, which shall be taken for laying out the road hereby authorized, to-claim and recover from such person or corporation the full value of all the land taken from such owner or owners for the road hereby authorized to be constructed, to the same extent as if no such road had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from the construction of such rail or tram way.” The proposed boulevard was laid out pursuant to the authority of that act, and commissioners of estimate and assessment were appointed for the assessment of damage and benefit, whose report was duly confirmed, and the said boulevard duly opened. In the year 1887 the legislature amended the act of 1867, by making section 24 of that act read as follows: “Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard, and no railroad of tramway shall be laid or constructed thereon, except by a railway company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter two hundred and fifty-two of the Laws of eighteen hundred and eighty-four, and which has heretofore complied or shall comply with all the provisions of said chapter in respect of the consent of owners of property and the local authorities.”

The Southern Boulevard Railroad Company, organized under the said act of 1884, began these proceedings to acquire the right to lay and operate its road upon the said boulevard. Commissioners were appointed, who made simply a nominal award; apparently having based their award upon the provisions of section 24 as amended in 1887, and not as originally enacted. From this award, the appellants, who were owners of property taken for the opening of the boulevard, appeal; and the question presented seems to be whether the legislature, after having authorized the taking for public use of property upon certain conditions, can abolish those conditions and treat the property as though in the first proceeding no conditions whatever had been attached to its condemnation. We think that this cannot be done. The provisions for the protection of the owners of property taken or assessed for the opening of the boulevard constituted a contract between such owners and the people of the state of Hew York, which the legislature had no power by its subsequent action to impair. Undoubtedly the awards made as compensation for the property taken were affected by the provisions contained in the act of 1867, whereby, in case (as had frequently been done) the street was to be prostituted to the uses of a private corporation, the owners should receive full indemnification for the taking of their property as though the proceedings for opening it as a highway had never been taken. This was the offer which the legislature made to the owners of the property. This was the offer which they accepted, and the legislature had no power to recede from the bargain after it had been consummated by the opéning of the street in accordance with the terms of the act in question. It is urged that this construction affirms the proposition that one legislature has the power to bind a subsequent legislature by a provision which would prohibit a new inquiry into the subject-matter and new legislation,—a proposition which needs but to be stated to be condemned, and which has been specially repudiated by the court in this department in reference to this very statute of 1867. Harlem Bridge M. & F. R. Co. v. Southern Boulevard, etc., 41 Hun, 553. An examination of the case cited shows that it has no applicability whatever to the question involved upon this appeal. All that was intimated in that case, a point which it was not necessary to decide, was that the legislature could repeal the act of 1867. There is no question but that it could so repeal that act, and, if it did so, the lands occupied by the Southern boulevard would at once revert to their owners; but the legislature has no power to repeal that part of the act whereby, as an inducement to the owners of land to permit the improvement, it covenanted for their protection. The legislature authorized the people to take the land under certain conditions, and the people cannot hold the land in disregard of these conditions. Neither can this private corporation come in and claim this property in condemnation proceedings without due regard to the conditions under which it was in the first instance devoted to public use. We think that by the terms of the act of 1867 a contract was entered into between the people of the state and the owners of this property that, after this improvement was made and paid for by the adjacent owners, no railroad company should be permitted to seize upon this avenue without compensating the owners for their property so taken. We think, therefore, under the circumstances, that the owners of this property were entitled to more than a nominal award, and that they were entitled to receive the actual value of the land as though no street had ever been opened. The order should be reversed, and the proceedings sent back to the commissioners for further examination, with costs to the appellant to abide the final event. All concur.  