
    In the Matter of The Southern Boulevard Railroad Company.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Eminent domain—Statutes—Power of legislature to alter.
    The legislature, after having authorized the taking for public use of property upon certain conditions, cannot abolish those conditions and treat the property as though in the first proceeding no conditions whatever had been attached to its condemnation.
    2. Same—Southern Boulevard—Laws 1867, chap. 290.
    By the act authorizing the construction of the Southern Boulevard, it was provided that no railroad should be constructed thereon without a special act, and in case the legislature should grant such right, nothing in the act should be construed to cut ofE the rights of the owners of the land to claim and recover the full value of the land to the same extent as if the boulevard had never been laid out on such lands. In 1887 this act was amended so that the section provided that no railroad should be constructed thereon except by a railroad organized under chap. 252, Laws 1884, and which has complied with the provisions of said chapter in respect of the consent of owners of property and the local authorities, and omitting the conditions aforesaid. Held, that the provisions of the act of 1867 for the protection, of the owners of property taken or assessed for the boulevard constituted a contract between the owners and the state, which the legislature had no power by subsequent action to impair, and upon condemnation by a railroad the owners are entitled to receive the actual value of their land, as though no street had ever been opened.
    Appeal from order of the special term confirming report of the commissioners appointed under the general railroad act.
    
      W. P. Williams, for app’lt; John N. Lewis, for resp’t.
   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. Amongst other things, it was provided in said act as follows:

Section 24. Said road when constructed shall be' kept and maintained for the public use as an avenue and boulevard, and except for the purpose 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 this state for that purpose first had and obtained; and in case the legislature of this state shall, at any future time, grant to any person or corporation the right to construct any rail or tramway 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 lands, 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 tramway.

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 damages 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 § 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 railway' or tramway shall be laid or constructed thereon except by a railroad company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter 252 of the Laws of 1884, 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 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 § 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 Mew 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 this bargain after it had been consummated by the opening 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., Co., 41 Hun, 553; 3 N. Y. State Rep., 316.

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 those 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

Daniels and Brady, JJ., concur.  