
    Rosa Herzog, App’lt, v. New York Elevated Railway Company et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 16, 1894.)
    
    Municipal corporations—Basements in street.
    An abutting owner, who purchases the premises with knowledge of a consent by a former owner to the construction of the railway, cannot, in violation of its terms, enjoin the operation of such road.
    Appeal from a j udgment in favor of defendants.
    The opinion of Ingraham, J., at special term, is as follows:
    Prior to the year 1875 the city of New York had acquired, under certain condemnation proceedings instituted under the act of 1813. the fee of Third avenue, which it held in trust for use as a public street. As a municipal corporation the city of New York also owned in fee the property abutting on the westerly side of Third avenue, between Sixty-Seventh and Sixty-Eighth streets. On June 18, 1875, an act of the legislature know as the “ Rapid Transit Act ” was passed. By that act a system was established, under the provisions of which authority could be acquired to construct elevated railroads over public streets and highways, and it was provided in that act that the'use of the streets, avenues, places, and lands authorized to be used for the purposes of such highway should be considered and thereby declared to be, a public use, consistent with the uses for which the streets, roads, avenues, and public places were publicly held. That act also contained a provision which required as a condition for the construction of any elevated railroad under the authority' thereby granted, that the consent of the local authorities having the control of that portion of the street or highway upon which it is proposed to construct or operate such railway or railways be first obtained. In pursuance of the provisions of that act the defendant the New York Elevated Railway Company was authorized to construct an elevated railroad in Third avenufe, between Sixty-Seventh and Sixty-Eighth streets, and.on September 7,1875, the common council of the city of New York duly adopted, and the mayor duly approved, the following resolutipn: “ Resolved, that this board, on behalf of the corporate authorities of the city of New York, hereby gives its consent to the routes adopted by the commissioners on rapid transit, as contained in the report of the said commisssioners, transmitted to the board this day.” Acting under the authority thus granted by the corporate authorities the defendant constructed its railroad in Third avenue, between Sixty-Seventh and Sixty-Eighth streets. Subsequently, in the year 1885, the mayor, aldermen, and commonalty of the city of New York conveyed" to the plaintiff’s grantor the premises described in the complaint in this action, abutting on Third avenue; and^ the plaintiff now brings this action, alleging that she acquired by virtue of the grant from the city of New York to her grantor, and by the grant from her grantors to herself an easement in Third avenue, which has been appropriated by defendant in the construction and operation of its railroad, and asks for an injunction to restrain the defendant from trespassing upon or appropriating such easement. And the question that meets us on the threshold of this case is whether the consent given by the city of New York to the defendant, to construct its road in Third avenue, did not grant to this railroad company its right on Third avenue as abutting owner, as well as its right and interest as owner of the fee of the street.
    The city of New York, as a municipal corporation, held all of the property which it owned for public use. It held the fee of the street for a specific public use, viz. that of a public street; and it had no authority, except by consent of the legislature, to appropriate any of the property held in trust to be used as a street for any purpose except a street use, but all the property that was vested in the corporation was corporate property, and could not be applied to any use, except corporate use, without the consent of the legislature. The legislature, however, had power to authorize the municipal authorities to consent to the use of its property for any public use, and for such purpose it had power to declare what would be a public use. It had power therefore, to declare that the elevated railroad should be deemed a public use, and to authorize the corporate authorities to denote any of the property that it held—whether in trust for public streets, or for the general municipal purposes—to the use of such railroad; and, acting under such authority, the corporation granted the right to use any of its property for the construction of such railroad, and the railroad company acted upon such consent, and built its road, the right to use such property so devoted for the railroad vested absolutely and irrevocably in the railroad corporation, and neither the city nor the legislature could subsequently resume possession of such railroad property without the consent of such railroad corporation. Thus, in the case of People v. O'Brien, 111 N. Y. 38 ; 19 St. Bep. 173, Buger, C. J., says: “The title to the streets of New York is vested in the city, in trust for the people of the state ; but, under the constitution and statutes, it had authority to convey such title as was necessary for the purpose to corporations desiring to acquire the same for use as a street railroad. The city had the authority to limit the estate granted, either as to the extent of its use, or the time of its enjoyment, and also had power to grant an interest in its streets or public use in perpetuity, which should be irrevocable.” Whatever interest, therefore, the city of New York had in the streets,—whether as owner of the fee of street, or as owner of abutting property,—it has power to grant to the defendant for this public use; and the consent of the city to the use of Third avenue by the defendant operated as a-grant of so much of the interest of the city in the street as was neccessary, for the construction, maintenance and operation of defendant’s railroad, and the railroad company by such grant,, took an estate in the street. People v. O'Brien, 111 N. Y. 40; 19 St. Bep. 173. It would be entirely inconsistent with this grant made by the city to the company for the city to thereafter prevent the corporation from building its railroad because, by the construction of the road, the property of the city in the street would be appropriated. By its consent to build the road it granted to the railroad company so much of its property in the street as was necessary for the maintenance and operation of the railroad. If a private person had owned both the street and the abutting proprety, and had by grant authorized the railroad company to erect its structure and operate its road it is clear that such consent would include the use of the easement in the street that was appurtenant to the abutting property, as well as ' so much of the fee of the street as was necessary for the construction and operation of its road; and I can see no reason why the same rule should not apply to property owned by the city, when the city has authorized the construction of the road under legislative authority. When the city made its conveyance to plaintiff’s grantor, it could convey only such rights in the street as it had at the time of its conveyance, and subject to the rights of the railroad company theretofore acquired, and as the railroad company’s possession of the street at the time of the conveyance was open and notorious, I think the grantee took with notice of the right that had been granted by the city to the railroad company. The proceedings of the rapid transit commisssioners in respect to the elevated railroads in the city of New York, and the resolution of the common council giving the consent to the construction of the road, were introduced in evidence by defendants, and, by such, proceedings and consent, it appears that the consent of the local authorities applied to that portion of the road in front of the premises' in question. I think, therefore, that the property in Third avenue acquired by the plaintiff by the conveyance of the abutting property was subject to the use of the street by defendants and that no property of plaintiff has been or is appropriated by defendants; and it follows that the defendants are entitled to judgment, with costs.
    
      B. K. Ingalls, for app’lt; E. B. Thomas, for resp’t.
   Yan Brunt, P. J.

This action was brought in equity to restrain the further maintenance and operation of the defendant’s, road in front of the premises of the plaintiff, situated on Third avenue in the city of New York, and incidentally to recover damagep already sustained by the plaintiff to the fee and for loss of rents of these premises caused by the .maintenance and operation of the defendant’s railroad. Upon the trial it appeared that, prior to June, 1885, the premises in question were owned by the mayor, aldermen, and commonalty of the city of New York, and on such date were conveyed to one Kern, who on the 15th of July, 1885, conveyed the same to the plaintiff. Prior to this time the defendant the New York Elevated Railway Company had erected its road along Third avenue in front of the premises which were subsequently conveyed to the plaintiff, pursuant to authority of law—the consent in writing of the corporation of the city of' New York being first duly given to the construction of said road, —and were operating the said road at the time of the conveyance to said Kern, and by Kerb to the plaintiff. Upon this state of facts, the court'below dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

• We might very well base our decision upon this appeal upon the opinion delivered by the judge in the court below; he showing that the mayor, aldermen, and commonalty owning the fee of the street of Third avenue for public use, when they granted the easement of such street, pursuant to legislative authority, necessarily conveyed all rights which, as the owners of .property abutting upon said street they might possess therein. In other words, that the corporation of the city of New York, being the owner of the premises now claimed by the plaintiff, and also of the fee of the street (impressed, it is true, with a public use), when it consented to the construction of this railway upon said street, it parted with all claim .to compensation for the use of easements in said street by the railroad company, which affected its property abutting thereon.

But there is .another view of this case which seems to be fatal to. the right of the plaintiff to maintain this action. The road, the-operation of which this action is brought enjoin, was built by and' with the consent of the owners of the premises in question ; and it would be inequitable now to permit a subsequent owner, buying said premises with knowledge of such consent, to enjoin the operation of the road, in violation of its terms. Even If an action for damage might be sustained, a court of equity would not, under such circumstances, intervene and by injunction, restrain the operation of the defendant’s road. It is a familiar principle in equity jurisprudence that the powers of a court of equity cannot be invoked for the purpose of working an injustice. We are of opinion, therefore, that the judgment should be affirmed, with costs.  