
    Katharine E. Heard et al., Appellants, v. The City of Brooklyn, Respondent.
    (Argued February 18, 1875 ;
    decided March 23, 1875.)
    Where a railroad corporation is authorized to acquire by legal proceedings only the use of lands for the purpose of operating its road, the fee remains in the owner subject to that use, and on the discontinuance of . the use the owner is entitled to resume possession.
    The owner cannot be deprived of this reversionary interest by the act of the corporation, nor by legislative enactment, without compensation.
    Accordingly held, that a conveyance made, to the city of Brooklyn, pursuant to acts of the legislature (chap. 330, Laws of 1853, and chap. 475, Laws of 1855), of lands for the purpose of a street which had been acquired by the B. and J. R. R. Co. by proceedings under its charter (chap. 256, Laws of 1832), was effectual only as a relinquishment of the right of the company to the use of the lands; and that, thereupon and upon the abandonment of the use, the owners of the fee were entitled to re-enter and take possession.
    .Also, held, that deeds by the owners of the fee of adjoining lands which bounded them by the railroad, executed while the lands were in the use of the corporation, in the absence of covenants, that upon the termination of such use said lands should be thrown open as a public street, did not operate as a dedication thereof for that purpose, and in no way impaired or affected the owner’s title.
    Appeal from judgment of the General Term of the Supreme Court in 'the second judíela] department, affirming a judgment in favor of defendant entered upon a decision of the court at Special Term.
    This was an action of ejectment for a strip of land fifty feet wide, forming the southerly portion of Atlantic avenue, Brooklyn.
    The land was formerly owned by John Cowenhoven, who conveyed the same to trustees, and the latter conveyed to plaintiffs.
    By act of the legislature (Laws 1832, chap. 256), incorporating the Brooklyn and Jamaica Railroad Company, it was authorized to construct, and during its existence to maintain a railroad from Brooklyn to Jamaica, with authority to appropriate lands for the purposes contemplated by the act, and directing the appointment of appraisers to assess the damages which each owner would sustain, by the appropriation of his land for the use or accommodation of said railroad, and, on payment of the damages thus assessed, the said corporation were to “become entitled to the use of said land for the purposes aforesaid.”
    By proceeding under this act, taken in 1834, the company appropriated the use of a strip eighty feet wide, by about 700 feet long, which included the land in question.
    Subsequent to this appropriation, Atlantic avenue was laid out seventy feet in width by commissioners appointed by the legislature to lay out a general city plan. The seventy feet mentioned included thirty feet of the northerly portion of the strip of eighty feet, leaving the fifty feet now claimed in the occupation of the company.
    On the 6th of May, 1844, the city obtained from said trustees, for the nominal consideration of five dollars, a conveyance for public streets or highways of certain pieces or parcels of land “ known and distinguished on the map of commissioners appointed to lay out streets, avenues, and squares in the city of Brooklyn, by the name of Adelphi' street,” etc., including portions of other streets and avenues, and, finally, such portion of “ Atlantic avenue as was within the limits of their title, and which streets and avenues are laid down on a map entitled ‘Map of the Cowenhoven homestead, in the Seventh ward of the city of Brooklyn,’ Brooklyn, March, 1844, surveyed by Silias Ludlam, city surveyor, and filed in the office of the clerk of the .county of Kings, on the 23d of April, 1844. To have, etc., as public avenues and streets until closed by lawful authority.” Atlantic avenue, as known and distinguished on the map mentioned in the deed, did not include the strip of fifty feet.
    In 1853, it was projected to widen Atlantic avenue by including the adjoining strip of fifty feet, then in the occupation of the railroad; and an act was passed (chap. 220, Laws of 1853), authorizing the company to cede the strip of land in question, which was described as “ owned by the Brooklyn and Jamaica Railroad Company on the south side of Atlantic avenue,” to the'city of Brooklyn, “as, and for a public street.”
    On the 10th of April, 1855, an agreement was entered into between said railroad company and the city of Brooklyn, by which the former agreed to convey to the city said strip of land therein also described as “ owned by the Brooklyn and Jamaica Railroad Company on the south side of Atlantic avenue,” for the purposes of a public street forever, and no other use or purpose whatever.
    On the 13th of April, 1855, the legislature passed an act (chap. 465), authorizing the city to widen Atlantic avenue to 120 feet, in which they ratified said agreement, and authorized both the cession and acceptance of the strip, which was therein also described as owned by said company, to be held by the city in fee simple absolute.
    On the 20th of August, 1855, a deed was executed, conveying to the city the strip of land in question, and the company thereupon removed its tracks and the defendant entered upon, paved, guttered and flagged the land as a public street.
    The defendant gave in evidence ten deeds, by the Cowenhoven trustees, to sundry individuals, conveying lots by courses and distances, bounded on their southerly side by the old Brooklyn and Jamaica turnpike, and northerly by the southerly side of the Brooklyn and Jamaica railroad.
    
      The court found, among other things, that the land was ceded to defendant as a street, by the owners. That it was dedicated as a highway by such owners. That defendant succeeded to the rights of the company, and was rightfully in possession of the land for a street and entitled to judgment.
    Judgment was entered accordingly.
    
      D. D. Lord for the appellants.
    The deeds of conveyance did not pass to the grantees any estate or interest in the strip appropriated by the railroad. (Johnson v. Hathaway, 15 J. R, 447.) There was no dedication of the land. (White’s Lessee v. Cincinnati, 6 Pet., 431; Bissall v. N. Y. C. R. R. Co., 26 Barb., 630.) The validity of the transfer by the railroad to the city cannot be supported by a supposed identity of the old and new uses, or on the ground that the new use was a lighter burden. (16 N. Y., 97.) The railroad company acquired only an easement under the statutory proceedings authorized by their charter, and on its abandonment of it it was extinguished. (Jackson v. Hathaway, 15 J. R., 447; Dunham v. Williams, 36 Barb., 136; Alb. R. R. Co. v. Brownell, 24 N. Y., 349; Carpenter v. Oswego, etc., id., 655 ; Mahon v. N. Y. C. R. R. Co., id., 658; Wager v. Troy, etc., R. R. Co., 25 id., 626; Craig v. R. and B. R. R. Co., 39 id.; Williams v. N. Y. C. R. R. Co., 16 id., 97; Trustee v. A. and R. R. R. Co., 3 Hill, 567; Hooker v. N. and M. R. R. Co., 12 Wend., 361; Haldeman v. R. R. R. Co., 50 Penn.; Miffin v. P. R. R. Co., 16 id., 19; Imlay v. U. Bridge Co., 26 Conn., 255; People v. Hayden, 6 Hill, 359; Gedney v. Earl, 12 Wend., 98; Bloodgood v. Mohawk, 18 id., 9; Heath v. Barmore, 50 N. Y., 302.) The legislative enactments of 1853 and 1855, confirming the transfer to the company had no effect upon the rights of the owners of the fee. (Laws, 1853, chap. 220; Laws of 1855, chap. 475, p. 854; Trustees, etc. v. A. and R. R. R. Co., 3 Hill, 567; Williams v. N. Y. C. R. R. Co., 16 N. Y., 97.)
    
      William C. De Witt for the respondent.
    The transfer of the lands from the uses of the railroad to uses of a street could "be made without further compensation to the original owners of the fee. (A. and, N. R. R. Co. v. Brownell, 24 N. Y., 345, 349; 1 R. S., 600, § 8; Laws of 1850, 234, § 48; 3 Stat. at Large, 549; State v. Maine, 27 Conn., 641; H. and Q. B. and T. Co. v. Norfolk, 6 Al., 353 ; Heath v. Barnum, 49 Barb., 496.)
   Rapallo, J.

By the proceedings for the acquisition of the land in question, under the act incorporating the Brooklyn and Jamaica Railroad Company (Laws of 1832, chap. 256), ' that company became entitled only to the use of the land for the purpose of operating its railroad. The fee remained in the original owners, subject only to that use, and on the discontinuance of the use, the owners were entitled to resume possession of the land.

This reversion was a valuable interest in the laud, of which the owners could not legally be deprived without compensasation. The conveyance from the railroad company to the city, in pursuance of the act of 1853 (chap. 220), the agreement dated April 10, 1855, and the act of the legislature of April 13, 1855 (chap. 475), were effectual as a relinquishment of the right of the railroad company to the use of the land for the purposes of its incorporation, and as a consent, on its part, that the land be thereafter devoted to the purposes of a public street forever. But they did not and could not operate to divest the owners of the fee of their estate in the land, or of their right to re-enter on the termination or abandonment of its use for railroad purposes. Ho act of the legislature could be effectual for that purpose which failed to provide compensation to the owners of the fee for their interests.

The very instruments under which the city claims to have acquired the title, operated as a discontinuance of the use of the land for railroad purposes, and together with the actual abandonment of that use, by taking up the rails,, etc., conferred upon the owners of the fee the right to re-enter and take possession. The argument that the use of the land as a street was less onerous than its use for railroad purposes, does not answer the objection that the owners of the fee could not be deprived, without compensation, of their right to re-enter, on the termination of the use of the land as a railroad. To authorize that use, after its termination, to be succeeded by a perpetual use for street purposes, is as objectionable on principle as it would have been to take the land originally for a street without providing compensation.

Where a corporation is authorized to acquire land, in fee, either by legal proceedings or by purchase, the property so acquired may, by authority of the legislature, be devoted to a new and different public use, after the use for which it was originally acquired has been terminated; or the land may be aliened by the corporation. In such cases no right of property of any individual is violated. The original owner has received compensation for, or has voluntarily granted, the whole fee, and has no reversionary or other interest in the land. (Heath v. Barmore, 50 N. Y., 302, and cases cited.) But it is otherwise when land has been taken for a particular use only, and that use is discontinued and abandoned.

W e are of opinion that in the present case the city derived no title as against the plaintiffs, from the conveyance by the railroad company, or the legislative acts authorizing that conveyance.

The claim or finding that the land in question was ceded by the trustees of the Cowenhoven estate to the city, for street purposes, is not sustained by any evidence. The deed upon which this finding is based is dated the 6th of May, 1844, and purports, in consideration of five dollars, to convey to the city, in fee, certain parcels of land which had been laid out on the commissioners’ map as streets, including Atlantic avenue from Clermont avenue to a point north-westerly from Hamden street. It was admitted on the trial that Atlantic avenue as laid out on this map, was only seventy feet in width, and was bounded on the south by a strip of land fifty feet wide, being the remainder of the eighty feet strip appropriated and occupied by the Brooklyn and Jamaica ¡Railroad Company, as referred to in the complaint, and that the avenue was duly opened, in accordance with said map, seventy feet wide, bounded on the south by said fifty feet strip. This deed of May 6, 1844, did not embrace any part of the fifty feet strip which is laid out on the map of the opening of the avenue, in evidence in the case, and is the land in controversy in'this action. This strip is in the acts of 1853 and 1855, and in the agreement and conveyance of 1855 described as owned by the railroad company, on the south side of Atlantic avenue, and is conceded to be no part of the avenue.

Neither is there any evidence of a dedication by the Cowenhoven estate to the public, or of a grant to individuals, of any part of the fifty feet strip in controversy. The several deeds from the trustees of the Cowenhoven estate which were put in evidence, conveyed to various individuals lots fronting * either on the Brooklyn and Jamaica turnpike road or on the Brooklyn and Flatbush turnpike road, and running through to the Brooklyn and Jamaica railroad. But the descriptions in these deeds did not include any part of the strip occupied by the railroad, and now in controversy, nor any interest therein; and at the date of these deeds that strip formed no part of Atlantic avenue, or any public highway, but was owned by the Cowenhoven estate, subject to the right of user of the railroad company; and there was no covenant that on the termination of that user the land should be thrown open as a public street, nor any thing from which such a covenant could be inferred. There is no evidence in the case showing that the plaintiffs or their predecessors have done any act divesting or impairing their title to the strip of land in controversy, or that any interest therein has passed from them in any way other than by the hostile proceedings under the act of 1832, set forth in the case, by which it was appropriated to the use of the railroad company for railroad purposes.

This use having been abandoned and discontinued, the property reverted to the original owners, of whom the plaintiffs are admitted to be the representatives.

We think the court erred in dismissing the complaint, and that the judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.  