
    STORY v. NEW YORK ELEVATED RAILROAD CO.
    
    
      N. Y. Court of Appeals ;
    
      October, 1882.
    [Reversing 3 Abb. N. C. 478.]
    Action fob Injunction Against Construction of Elevated Railroad.—Deed with Stipulation as to Use of Streets.— Dedication to Public Use.—Municipal Corporations.— Ownership of Streets.—Covenant not to Build.— Easement of Abutting Owners.—Constitutional Law of compensation for Private Property. —Elevated Railroad an Obstruction. —Eminent Domain Exercised by taking Land in Trust.—Railroads in Highways.
    In a deed by a municipal corporation to an individual, of land under water embracing the bed of a projected street, the grantee agreed to build, erect and make, or “ cause to be built, erected and made, the street now known as Front street,” and then followed this clause : “Which said streets shall forever thereafter continue and be, for the free and common passage of, and as public streets and ways for, the inhabitants of the said city, and all others passing and returning through or by the same, in such manner as the other streets of the same city now are or lawfully ought to be.”
    
      Reid, that this was a covenant on the part of the city, the grantor, and not merely of the grantee, for it must be assumed to be made by the party who held the title to the bed of the street, and if the bed of the street was included in the grant, it must be deemed the covenant of the city, because in that case the land could not become a street except by proceedings taken for the purpose, or by a dedication to and acceptance by the public.
    The construction of the street pursuant to the covenant would amount to a dedication, and the covenant would amount to an acceptance on the part of the city.
    The rule, that where an individual conveys village or city lots, designated upon a map as abutting upon a public street, the map being referred to in the deed, the grantee acquires, as against the grantor, a right of way over the strip of land referred to as a street, although the same may not, in fact, be a public street, not having been accepted by the public as such ; yet, as between the parties to the grant, the land is deemed to have been dedicated to- the public by the grantor, and he cannot thereafter appropriate said lands to any use inconsistent with their use as a public street,—applied.
    
      The city of New York, having power to lay out and open streets and to acquire land for such purposes, had power to dedicate its own land to such uses, and to bind itself by a covenant with its grantees of abutting lands that a particular street should forever be kept as a public street.
    Such a covenant in a deed is a covenant running with the land, and passes to a subsequent grantee of the estate without any special assignment of the covenant.
    The servitude created by it constitutes a private easement in the bed of the street, attached to the lands abutting thereon and passing with the title to those lots.
    Such easement is properly within the constitutional provision requiring compensation for the taking of private property.
    The erection of an elevated railroad which, as a fact, will to some extent obscure the light of the abutting premises and impair their general usefulness and depreciate their value, is a taking of the property of the owner of the premises and such easement, which requires compensation.
    A covenant to keep a strip of land open as a public street forever is a covenant not to build thereon.
    The cases of People v. Kerr, 27 N. Y. 188 ; and Kellinger v. Forty-Second Street R. R. Co., 50 N. Y. 206,—explained and limited.
    Where, by the exercise of the right of eminent domain, the public acquire, not the property itself, but the mere right to use it for a particular purpose, the title of the former owner is not extinguished, but is so qualified that it can only be enjoyed subject to the easement. In such case the title of the public is limited to the particular use, with the powers and privileges incident thereto.
    Although the construction of a surface railroad without a change of grade is a legitimate exercise of the power regulating the use of public streets for public purposes, it seems, that the taking of permanent and exclusive possession for sidings and the permanent occupation with rows of standing cars, or the erection of permanent depot buildings would not be within the power.
    The trust created by the act of 1813, under which the city of New York takes land for streets, is one for the benefit of abutting owners as well as for that of the public.
    The legislature is not authorized in its discretion to appropriate the public streets of cities to railroad corporations, without reference to the form of their structure or the extent of the injury wrought upon abutting property, without compensation.
    The erection of an elevated railroad,—such as that described in the evidence in this case,—is inconsistent with the use of a street as a public street, and is a taking and appropriation of the property of abutting owners for public use.
    The rapid transit act authorizes the corporation to acquire the property that may be necessary for its uses, including such easements, upon making compensation therefor.
    In this case, in view of the serious consequences to the railroad company of an immediate injunction,—Held, that an injunction should not be issued until after a reasonable time" had been afforded to acquire the property by agreement, or by proceedings to fix compensation.
    Appeal from a judgment of the general term of the court of common pleas in the city of New York affirming a judgment of the special term dismissing plaintiffs complaint on the merits.
    This action was brought by Bui us Story against the New York Elevated Bailroad Company to enjoin them from constructing their elevated railroad in Front street, in the city of New York, in front of the plaintiffs premises. [The decision of the special term is fully reported in 3 Abb. N. C. 478.]
    
    Plaintiff sought this relief upon the ground (in addition to. the objections that the structure was unauthorized, that it was a common nuisance especially injurious to the plaintiff, and that compensation had not been awarded him) that his title to his property was held under a deed from the city which secured the use of the street. His title was derived through two water grants from the city corporation, one dated May 26, 1773, to Thomas Allison, and the other dated December 2, 1737, to Isaac De Peyster, both of which embraced the entire bed of the street.
    By each grant the grantee agreed to “build, erect, and make, or cause to be built, erected, and made, one other good and sufficient firm wharf or street of forty-five feet English measure in breadth . . . which said street shall also be built, erected and made in such manner upon a straight or right line, . . . which said several streets shall forever thereafter continue
    and be for the full and common passage of, and as public streets and ways for, the inhabitants of said city, and all others passing and returning through or by the same, in such manner as the other streets of the same city now are or lawfully ought to be.”
    The court below dismissed the complaint on the merits, holding that this stipulation bound the grantee but was not to be deemed the covenant of the city, and held that an abutting owner is not entitled to compensation for an authorized use of the street in front of his premises for an elevated railway, which in no way interferes with its use as a highway, other than to such extent as the columns upon which it is erected may incommode and interfere with the right of the public, in passing along the street; and that he is not entitled to damages for any annoyance'occasioned to his premises by the construction of the railway and its use of the street as authorized by the legislature. (Reported in 3 Abb. N. C. 478.)
    
      
       This decision, in connection with those which have preceded it, indicates the general rights of abutting owners as affected by railroads, &c., in highways, to be as follows :
      If the public have only acquired an easement or right of way the construction of a steam railroad even on the surface of the street is not authorized, without compensation for the additional burdens. Williams v. N. Y. Central R. R. Co., 16 N. Y. 107.
      If the public have acquired the fee of the land, but in trust for use as a highway only, the right will depend upon the terms of the trust, and if those declare the street shall be kept open for free and common passage, structures which obstruct that passage are an injury which may entitle an abutting owner intended to be benefited by the trust to compensation. Story v. Elevated R. R. Co., above.
      If the public are the owners of an absolute and unqualified fee in the lau,d used as a street, the question will depend upon general principles, of which the chief are the maxim, sie Utere tuo ut non alienum laidas, and the rule that that which is expressly sanctioned by the legislature is not actionable as a nuisance. See Caro v. Metropolitan R. Co., 46 Super. Ct. (J. & S.) 138.
      I am indebted to Robert E. Devo, Esq., for the very complete collection of papers in this litigation, from which this report has been prepared.
      
        On the right to compensation in these cases, see also, beside the cases cited in the report, Eaton v. Boston, Concord & Montreal R. Co., 51 N. H. 504; and an article by Arthur G. Sedgwick on the constitutional protection of property rights, in North American Review, September, 1882, and by A. Knauth, 26 Alb. L. J. 336.
      The injurious effect on the human system, of the noises of cities, railroads, machinery, &c., are discussed by James Sully, in a paper on “Civilization and Noise,” in the Popular’ Science Monthly, Supp., December, 1878, p. 111.
      In City of Brooklyn v. N. Y. Ferry Co., 87 N. Y. 204, it was held that the city’s authority to regulate its wharves and piers did not imply power to deprive owners of uplands and water front of the enjoyment and improvement of their own premises without compensation.
      As to further extensions of new made land, see also, Matter of City of Brooklyn, 73 N. Y. 179.
    
    
      
       In this connection are there reported the other elevated railroad cases of which a full account is given there p. 301, namely : Patten v. N. Y. Elevated R. R. Co., p. 306 [appeal from the injunction was dismissed, 67 N. Y. 484] ; Ninth Avenue R. R. Co. v. N. Y. Elevated R. R. Co., p. 347 ; Sixth Avenue R. R. Co. v. Gilbert Elevated R. R. Co., p. 372 ; reversing 41 Super. Ct. (J. & S.) 489 ; Matter of N. Y. Elevated R. R. Co., p. 401 ; S. C, 70 N. Y. 327 ; affirming 7 Hun, 239 ; Gilbert Elevated Ry. Co., v. Anderson, p. 434 ; S. C., less fully, as Matter of Gilbert Elevated Ry. Co. v. Kobbe, 70 N. Y. 361 ; affirming 9 Hun, 303 ; and Spader v. N. Y. Elevated R. R. Co., p. 467.
    
   On appeal to the general term, this judgment was affirmed, the following opinions being delivered by the court:

Beach, J.

The opinion of the lamented judge before whom this case was tried at special term is very learned and elaborate. It contains a careful examination of the various points presented, and I coincide with its conclusions without a ttempting to reproduce the arguments and the authorities by which they are maintained. I am of the opinion that the original grant, under which the plaintiff claims, did not convey a fee to any part of the street upon which the railway of the defendant is located. It seems plain to me, that it is held by the city in trust for the general public.

Doubtless the plaintiff is entitled to the use of the street in common with others, and may complain, if unlawfully subjected to special damages. The case, of People v. Kerr, 26 N. Y. 188 ; sustained by Kellinger v. Second St. R. R. Co., 50 N. Y. 206, seems conclusive upon the proposition that plaintiff, as abutting owner, having no freehold interest in the street, is not entitled to compensation on account of its appropriation to public use, because of resulting inconvenience to the enjoyment of his property.

If this position be maintainable, that the fee of Front street remains in the city, as I conclude it does, I am unable to see any ground or principle upon which the plaintiff would be entitled to the relief he demands.

The judgment should be affirmed upon the opinion given by the court below.

Larremore, J., concurred in result.

Van Brunt, J.

I concur in the result of-Judge Beach’s opinion, but I do not concur in the view that may be drawn from it, that the courts have as yet decided that abutting owners upon streets opened under the act of 1813 have no interest in the light, air and access which they have bought and paid for, such as will entitle them to compensation in case the same shall be appropriated by the legislature to the exclusive use of the general public.

This appeal was then taken to the court of appeals, and, in view of the large amount of property affected by the decision of the question, the court allowed other property-owners similarly situated to be represented on the argument of the appeal.

The further facts will appear from the report of the decision at special term [3 Abb. N. C. 478], from the points of counsel, and the opinion of the court.

John E. Parsons (Man & Parsons, attorneys), for appellant.—I. The plaintiff owns one half of the bed of Front street opposite his premises. The covenant by the grantees of the original water lots to make the streets, &c., did not constitute an exception from the grant, the words having no reference to the fee of the soil (Duryea v. Mayor, &c. of N. Y., 62 N. Y. 592; Craig v. Wells, 11 Id. 315; Long Island R. R. Co. v. Conklin, 32 Barb. 381; Starr v. Child, 5 Ben. 599). The grant should be liberally construed so as to carry out the intention of the parties (Springsteen v. Samson, 32 N. Y. 703 ; Jackson v. Dunsbagh, 1 Johns. Cas. 92 ; Jackson v. Myers, 3 Johns. 388 ; French v. Carharf, 1 N. Y. 96 ; Holmes v. Carley, 31 N. Y. 289 ; Pillow v. Bushnell, 5 Barb. 156; Sheppard's Touchstone, 86; 1 R. S. 748, § 2; Richardson v. Palmer, 38 N. H. 212; Hurd v. Curtis, 7 Met. 110 ; Choate v. Burnham, 7 Pick. 274 ; Karmuller v. Krotz, 18 Iowa, 352; Swick v. Sears, 1 Hill, 17; Borst v. Empie, 5 N. Y. 33; Munn v. Worrall, 53 Id. 44; Peck v. Smith, 1 Conn. 103; Leavitt v. Towle, 8 N. H. 96). The mesne conveyances furnish every presum ption that it was the intention of the grantors to convey their entire estate, and the description is to be construed according to the intention of the parties (68 N. Y. 246, 253). Bounding on a street, carries to the center line of the street (Bissel v. N. Y. Central R. R. Co., 23 N. Y. 63; Perrin v. Same, 36 Id. 120 ; Wallace v. Fox, 50 Id. 694; Miner v. Mayor, &c. of N. Y., 37 Super. Ct. (J.&S.) 171, 200 ; Sizer v. Devereux, 16 Barb. 160; Hammond v. McLachlan, 1 Sandf. 323 ; Lozier v. N. Y. Central R. R. Co., 41 Barb. 465 ; Dovaston v. Paine, 2 Smith Lead. Cas. [6 Am. ed.] 228; Banks v. Ogden, 2 Wall. 57; Dunham v. Williams, 37 N. Y. 251). The dimensions in a description are always controlled by the fixed boundaries (Sizer v. Devereux, 16 Barb. 160; Jackson v. Ives, 9 Cow. 661 ; Wendell v. Jackson, 8 Wend. 183; Northrop v. Sumney, 27 Barb. 196; Jackson v. Camp, 1 Cow. 605, 612; Jackson v. Widger, 7 Id. 723; Smith v. McAllister, 14 Barb. 439 ; Schoonmaker v. Davis, 44 Barb. 463). The words “more or less, ” in a description, indicate that the entire plot is to be conveyed, without reference to its exact dimensions (Mann v. Pearson, 2 Johns. 37 ; Morris Canal Co. v. Emmett, 9 Paige, 169; Jackson v. Moore, 6 Cow. 706 ; Lush v. Druse, 4 Wend. 318; Brady v. Hennion, 8 Bosw. 528).

IT. The effect of the covenant in the grants of 1773, that Front street was “ forever thereafter to continue and be for the free and common' passage of, and as public streets and ways for, the inhabitants of the said city and all others passing and returning through or by the same, in such manner as the other streets of the said cityfnow are or lawfully ought to be,” was not to vest the title of Front street in the city absolutely, upon the ground, as decided by Judge Robinson, that the city at the time had an absolute title to all the city streets (citing and applying Dunham v.Williams, 37 N. Y. 251 ; Dovaston v. Paine, 2 Hen. Bl. 527 ; 1 Colonial Laws, 8 ; Washington Cemetery v. Prospect Park, &c. R. R. Co., 68 N. Y. 591; Matter of John and Cherry Streets, 19 Wend. 659 ; Milhau v. Sharp, 27 N. Y. 623 ; Wetmore v. Law, 34 Barb. 515, 520 ; Mott v. Mayor, &c. of N. Y., 2 Hilt. 358 ; L. 1807, c. 115, pp. 271, 272, 276 ; Wyman v. Mayor, &c. of N. Y., 11 Wend. 487 ; 2 Smith Lead. Cas. [7 Am. ed.) 142).

III. The plaintiff, as a mere abutting owner, has an absolute right to protect the street in front of him for ordinary street uses. To deprive him of air and light, ventilation and access, is to take front him Ms property; and no compensation having been given to him, it is in violation of the constitutional protection that private property shall not be taken for public use without just compensation; and that no person shall be deprived of his property without due process of law (Act April 9, 1813, § 177; Act October 9, 1691, Livingston & Smith, 8 ; Act April 16, 1787, 2 Jones & Varick, 152; Milhau v. Sharp, 27 N. Y. 611; Davis v. Mayor, &c. of N. Y., 14 N. Y. 506 ; Doolittle v. Supervisors of Broome, 18 Id. 155 ; People v. Kerr, 27 Id. 188 ; Kellinger v. Forty-second St. R. R. Co., 50 Id. 206; Matter of N. Y. Elevated R. R. Co., 70 Id. 327; Matter of Gilbert Elevated Ry. Co., Id. 361. Citing, as to the rights of owners to appurtenances and the protection offered by the law : U. S. Supreme Court—Pumpelly v. Green Bay Co., 13 Wall. 166 ; Illinois—Stone v. F.P. N. W. R. R. Co., 68 Ill. 394; Rigny v. City of Chicago, Chicago Legal News, April, 1881 ; Indiana—Haynes v. Thomas, 7 Ind. 38 ; Protzman v. Ind. & Cin. R. R. Co., 9 Ind. 467; Connecticut—Hooker v. New Haven, &c. R. R. Co., 14 Conn. 146; New Jersey—Glover v. Powell, 2 Stock. 211; Missouri— Lackland v. No. Missouri R. R. Co., 31 Mo. 180; Wisconsin—Pratt v. Brown, 3 Wisc. 613; New York—The cases in New York are uniform in holding that when it is necessary to take the property of an individual, or to destroy or materially injure it or its appurtenances, in regard to its present or future use, for the public-good, the owner is entitled to compensation and will be protected by injunction until such compensation is provided for'; and that where inconvenience or loss, as an ordinary and almost inevitable consequence, results from public improvements, an action will lie for damages, though not where they are the consequence of an act which would be permitted to a private owner. Gardner v. Trustees of Newburgh, 2 Johns. Ch. 162; Lansing v. Smith, 8 Cow. 146; affirmed, 4 Wend. 10; Canal Appraisers v. People, 17 Id. 570; Fletcher v. Auburn & Syracuse R. R. Co., 25 Id. 462 ; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463 ; Boughton v. Carter, 18 Johns. 405; Brown v. Cayuga, &c. R. R. Co., 12 N. Y. 486 ; Bellinger v. N. Y. Central R. R. Co., 23 Id. 42 ; Radcliff’s Exr’s v. Mayor of Brooklyn, 4 Id. 195 ; Arnold v. Hudson River R. R. Co., 49 Barb. 108 ; reversed, 55 N. Y. 661; Matter of Flatbush Ave., 1 Barb. 286 ; Seneca Road Co. v. Auburn, &c. R. R. Co., 5 Hill, 170; First Baptist Church v. Schenectady, &c. R. R. Co., 5 Barb. 79 ; Drake v. N. Y. Central R. R. Co., 7 Id. 508 ; Taylor v. Brookman, 45 Id. 106 ; Matter of Utica, &c. R. R. Co., 56 Id. 456 ; Trustees Presb. Socy. v. Auburn, &c. R. R. Co., 3 Hill, 567 ; Mahon v. N. Y. Central R. R. Co., 24 N. Y. 658 ; Wager v. Troy Union R. R. Co., 25 Id. 526 ; Craig v. Rochester, &c. R. R. Co., 39 Id. 404; Gould v. Hudson River R. R. Co., 6 Id. 522; People v. Canal Appraisers, 33 Id. 461.

IV. The interest of the abutting owner, his right to light and air and ventilation and freedom of access, his exemption from annoyance, is property, and it can only be taken from him by legal process, and for just compensation (Taylor v. Porter, 4 Hill, 140; Wynehamer v. People, 13 N. Y. 378 ; Pumpelly v. Green Bay Co., 13 Wall. 166 ; 3 Kent Comm. 452 ; Termes de Ley, “Easement;” 2 Washburne Real Prop. 302, 307; Beach v. Childs, 13 Wend. 343 ; 22 Id. 528).

V. The protection afforded by the constitution against the appropriation of the plaintiff’s property without just compensation, was not furnished by the bond for $500,000 to pay damages, under section 11 of the Yonkers charter (Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9).

VI. Whether the plaintiff is owner in fee of the bed of Front street, or is limited to the ordinary right of an abutting owner, the construction and maintenance of the defendant’s railroad in imposing a new burden or servitude upon the street, violates the plaintiff’s rights (Williams v. N.Y. Central R. R. Co., 16 N. Y. 97; Craig v. Rochester & Brighton R. R. Co., 39 Id. 404; Strong v. City of Brooklyn, 68 Id. 1; Washington Cemetery v. Prospect Park & C. I. R. R. Co., Id. 591), and so takes property. The interest of the owner must be condemned by judicial proceedings, and paid for before his property can be taken (Taylor v. Porter, 4 Hill, 140; Williams v. N. Y. Central R. R. Co., 16 N. Y. 97; Wagner v. Troy Union R. R. Co., 25 Id. 526, 530; Ellicottville & Gt. Val. P. R. Co. v. Buffalo & Pittsburgh R. R. Co., 20 Barb. 644 ; Fletcher v. Auburn & Syracuse R. R. Co., 25 Wend. 462; Trustees, &c. v. Auburn & Rochester R. R. Co., 3 Hill, 567; L. 1850, c. 140, § 18). Injunction is the proper remedy to protect the owner’s right (Williams v. N. Y. Central R. R. Co., 16 N. Y. 97; Davis v. Mayor, &c. of N. Y., 14 Id. 506, 525, 526; Milhau v. Sharp, 27 Id. 624; Craig v. Rochester & Brighton R. R. Co., 39 Id. 404; Bloomfield Gas Light Co. v. Calkins, 62 Id. 386).

VII. By the Ellison and De Peyster grants the city covenanted that Front street should forever continue to be a public street, in the same manner as the other streets of the city. This covenant protects against the appropriation of Front street by defendant’s railroad. (L. 1875, c. 606, §§ 4, 36).

VIII. The court of common pleas had jurisdiction, and could grant relief by injunction (L. 1867, c. 489 ; L. 1873, c. 239 ; L. 1875, c. 606).

IX. The defendants were restricted by the act of June 17, 1875 (L. 1875, c. 595), to the use of streets on the west side of the city (L. 1867, c. 489; L. 1875, c. 595, §7; L. 1875, c. 606).

X. The defendants have no such consent from the local authorities for the use of Front street by their railroad, as is required (L. 1875, c, 606, §§ 4, 36 ; Resolution of Board of Aldertiaen, September 7, 1875).

William M. Uvarls, in support of the rights of abutting owners and streets built on, and subject to continuing use for their private emolument by the elevated railroad companies.—I. Unless the abutting proprietors are subject to the occupation of the streets upon which their stores and houses have been built and are enjoyed, by themselves or their lessees, now complained of, without their consent and without compensation, such occupation of the streets will be enjoined until their consent is obtained or compensation, by due legal proceedings, has been paid or secured to them.

II. It is conceded in the case and the argument of the defendant, that no compensation to the abutting proprietors has formed any part of the transaction by which the railroad company has appropriated the streets and is continuing its occupation of them (Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327; Matter of Gilbert Elevated R. R. Co., Id. 361).

III. It only needs a circumspect attention to the true relations, under our law, of the public, the State, the municipal corporation, and the abutting proprietors, respectively, to the open spaces which are essential to habitations in a city, and are provided therefor, and subservient thereto, to exhibit the simple and impregnable foundation of the abutting proprietors’ property rights in a perpetual frontage on an open street (Railroad Co. v. Schurmeir, 7 Wall. 272; Transportation Company v. Chicago, 99 U. S. 635).

IV. The disposition of the beneficial interests, in our law, in the maintenance of an open street, is substantially the same, whether the street has been simply dedicated by the private owner, or the public use alone has been taken in invitum by condemnation, or the fee has been conveyed by the private owner, or has been taken in invitum by condemnation.

V. By the law of 1813, what the public takes, and what the private owner is deprived of, is one and the same thing. And as the private owner had the whole fee simple absolute, legal and beneficial, before the public took anything from.that fee, he retains the entire beneficial interest not thus departed with. Again, the constitution forbidding the taking of private property for public use without compensation, necessarily what the public took under the act of 1813, and the compensation it paid, are each the measure of the other. Upon these two criteria we are able to accurately determine how the property interests were treated in the procedure of the act of 1813; what was the public acquisition, what the private owner’s residí uum, and how the compensation was calculated and paid, what the public took, and what the private owner parted with (2 Wend. 474 ; see also Matter of Seventeenth street, 1 Wend. 262).

VI. Now, in determining the pature and quality of the estates, easements and legal and beneficial rights and interests created and distributed by this statutory proceeding, it is manifest that they are not different from what they would have been had they been produced by mere private arrangements for the use and improvement of the property concerned.

VII. That the interests of abutting proprietors in the maintenance of an open street in front of their lots, as secured and paid for under the act of 1813, are property in the sense of our law, and if so, not to be taken away, in whole or in part, for public use without compensation, seems indisputable (Arnold v. Hudson River R. R. Co., 55 N. Y. 661).

VIII. The occupation of the streets by the structure and traffic of the defendant, is not within the public easement acquired under the act of 1813, and is subversive.of the abutting proprietor’s easement and beneficial estate, secured and paid for under that act (16 N. Y. 109).

IX. The structure and operation of the elevated railroads are an encroachment upon the easement of the abutting proprietors, and pro tanto a closing of the open street upon which they, by the act of 1818, were secured a perpetual frontage.

X. At the time of the dealing with the open streets now complained of, the property rights of the abutting proprietors stood as they did when the public easement and the abutting easement, or trust benefit, were adjusted under the act providing for the then required expropriation and its due compensation (People v. Kerr, 27 N. Y. 188 ; Craig v. Rochester R. R. Co., 39 Id. 404).

XI. Upon these considerations, and upon the principal brief in the cause, it is respectfully submitted that the abutting proprietors, as well when the trust fee in the soil of the streets is in the city, as when otherwise, have appurtenant easements which are property, under our law and within the constitutional guaranty, that have been encroached upon by this private corporation, without due warrant of law, and for which the abutting proprietors must, after due condemnation of their property thus taken for public use, receive compensation.

Julien T. Davies and Roger Foster, of counsel ■for Diego S. Caro and others similarly interested with the plaintiff.—I. The authorization by the legislature of the acts of the defendant, without providing for any compensation to the plaintiff, would be a law impairing the obligation of contracts and therefore an infringement of the constitution of the United States.

1. This constitutional provision protects as well vested rights under executed contracts or grants as ex-ecutory contracts.

2. The acts under which the city of New York claims the fee simple to most of the streets within it formed part of a contract between the city and the owners of the land, part of which it took to make those streets, whereby the city agreed to always maintain them open in substantially the same condition as they then were, and as the other streets were and should remain. The grant of the city to the original owner of the present plaintiff’s land had the same object and result. A. An express trust, enforceable by the owners of the land and their successors, was created by the language of the statutes and of this conveyance,, which has the same intent. (1.) Even if the act of 1813 did create a mere public trust, as is maintained by the defendant, that trust can be enforced by any individual peculiarly interested in its observance. (2.) But the evident intention of the legislature was to create a trust for the peculiar benefit of the owners whose land was thus taken, a. Such is the evident meaning of the language, which suggests itself to anyone, who, for the first time, reads the statute.' h. Such has also been the opinion of the courts upon the act of 1813, whenever the question has been hitherto before them. B. Even if the language in the conveyance to the plaintiff’s predecessor did not create a trust for the benefit of the abutting owners ; upon the sale of this land by the city, bounded upon a street, they took by implication an easement giving them and their successors a right of way, and to an uninterrupted passage of light and air over it to their abutting building land.

1. If this conveyance with the included provision concerning the street had been made by a private person, there could be no doubt but that the plaintiff would be entitled to prevent him from obstructing the right of way and right which he thus acquired by implication.

2. There is no reason why cities should not be held, as strictly as individuals, to the evident intention of their contracts.

3. Such a trust estate and easement is appurtenant to the ownership of lands abutting upon the street, and passes to all purchásers of them without ány expressed words conveying it.

4. The construction and operation of an elevated railroad in the street, constitutes a breach of the contract of the city. A. That this is so, has been already recognized by this court, and was manifest before that recognition. B. The surface railroad cases do not conflict with this position.

II. Independently of any contract, or statutory clause, giving the plaintiff a trust estate or an easement in the street on which his house and land abut; a law authorizing the invasion of his premises by the noise, steam, smoke and dust from, and the obstruction of the necessary means of access to them caused by, the defendant’s road, without compensation to him for the injury thereby occasioned, would take his private property for public use without compensation, and therefore be an infringement of the constitution of the State of New York.

1. The plaintiff’s property would be taken, if he were not allowed any legal remedy for the damage resulting from the defendant’s acts. A. Property is taken whenever a person is deprived of a capacity of restraining, by legal process, another from doing any act which it would be lawful for the former to allow in consideration of the payment of money or otherwise. (1.) This definition is in harmony with the views of the most eminent and approved writers upon jurisprudence. (2.) This definition is synonymous with that given by the standard lexicographers. (3.) The word is used in this sense by the courts in their decisions. B. The owner of land and buildings has the capacity of restraining another from injuring his enjoyment of it by smells, smoke, dust, offensive gases, excessive noise and, obstruction to his entrance thereto, even though these damages result from acts committed by the defendant beyond the land of the plaintiff. (1.) The owner of land has a right of action against a person who pollutes the air upon it by smells, through which his enjoyment of it is seriously impaired. (2.) The owner of land has a right of action against-a person who pollutes the air upon it by smoke or other gases, which seriously interfere with his enjoyment of it. (3.) The owner of land has a right of action against a person who makes an excessive noise in the neighborhood, which seriously interferes with his enjoyment of it. (4.) The owner of land adjoining a public street has a cause of action against any person for obstructing his entrance to it. 0. The depriving him of such a right of action without paying him! its value is, therefore, a taking of his property without compensation.

2. If the word “ property ” be taken in its most restricted,—what Austin calls its “loose and vulgar” sense,—as signifying a physical object which must be physically invaded in order to constitute a taking of it, the acts of the defendant constitute such a taking, A. The plaintiff’s property is taken by the sending upon and over his land, against his will, of the gas, smoke, steam, smells and noise necessarily resulting from the operation of the defendant’s road. (1.) It is a firmly established doctrine, that property is taken by the imposition upon land of any physical substance against the owner’s will. (2.) It is well known that smoke, gas and smells are composed of physical substances, particles singly, as in the case of smoke, or altogether, as in the case of smells and many gases, invisible, bat, which are felt when they impinge upon the eye or nostrils, and are capable of being, by pressure, reduced to a solid mass,—therefore it must follow that when sent by the railroad company upon the plaintiff’s land, his property is taken thereby within the most restricted meaning given to the constitutional provision. (3.) Noise consists of vibrations through the force of sound waves. It is common experience that when loud it often shatters glass and other fragile substances, and that, when repeated, it wears out the human nerves and frame. If the damage here sought to be prevented were the result of hammering with iron upon the plaintiff’s house there would be no doubt as to its constituting a taking of his property. It can make no difference, that these blows are delivered by vibrations of the air, if these are likewise shown to be injurious. B. The plaintiff’s property is taken by the defendant, because its structure cuts off from his land the sunlight which was accustomed to shine upon it. (1). It is firmly established doctrine that property is taken whenever the owner’s land is deprived of anything which was formerly accustomed to flow over it. (2.) There is no difference between the taking of sunlight and of water ; while the former is often more valuable than the other. C. The plaintiff’s property is taken from him by the diminution of the enjoyment of his house and land, caused by the noise, smells and darkness resulting from the operation of the plaintiff’s road. (1.) It will not be denied that the enjoyment of his house and land is greatly diminished. (2.) It is a firmly established doctrine that property is taken when the owner’s enjoyment of a thing is impaired. (3.) This is not such a case of mere consequential injury as gives the sufferer no legal remedy.

III. A statute authorizing the injury done to the plaintiff’s house and land by the smoke, smell, noise, darkness and obstruction to his right of way resulting from the construction and operation of the elevated railroad without providing for compensation, would deprive him of his property without due process of law, and therefore be an infringement of the constitutions of both the United States and the State of New York.

IV. The deprivation, by the authorization of the elevated railroads, of the plaintiff and other abutting owners alone, out of all the inhabitants of the State of New York, of the right to obtain an injunction against a nuisance affecting their health and property, would amount to a denial to these persons, within the state’s jurisdiction, of “ the equal protection of its laws,” and be therefore an infringement of the constitution of the United States.

V. But the intention of the statutes authorizing the construction and operation of the elevated railroads was, that compensation should first be paid to the abutting owners for 'the mischief done them thereby.

1. That these abutting owners have rights, which it would be unconstitutional to deprive them of without compensation, has been already shown.

2. It must be presumed, if the construction of the statute were doubtful, that the legislature which passed it intended to obey the fundamental law.

3. Authority given by similar statutes is always strictly construed in favor and protection of private lights.

4. That the rapid transit acts make ample provision for the compensation of all who would under them be deprived of any rights, has already been decided by this court, and is the only reasonable construction of them. A. Such is the construction put upon these statutes by this court. B. Such is the reasonable construction of the statutes which provided for the appropriation of real estate.

5. Such would have been the only just and equitable plan for the legislature to adopt, and the court will not presume that it has intended to enact any measure that would not be just and equitable.

VI. The proper remedy for the plaintiff is an injunction.

1. An injunction will always be granted to prevent the taking of private property for public use without previous compensation.

2. An injunction will always be granted to prevent the use of property taken under the right of eminent domain for a different purpose from that for which it was acquired.

3. An injunction will always be granted to restrain and abate a continuing nuisance.

4. An injunction will always be granted to prevent the commission of an unlawful act by one who is unable to pay the damages that will result therefrom.

5. An injunction will always be granted to restrain a breach of a covenant or other contract affecting the use of land.

VII. The judgment should, therefore be reversed with costs, and the plaintiff granted the injunction prayed for in his complaint.

Citing, in addition to the authorities already stated : Const. U. S. art. 1, § 10 ; Fletcher v. Peck, 6 Cranch, 136 ; Terrett v. Taylor, 9 Id. 43; Dartmouth Coll. v. Woodward, 4 Wheat. 518 ; Wabash R. R. Co. v. Beers, 2 Black, 448; Scott v. Becher, 4 Price, 346 ; cited in Perry on Trusts ; Attorney General v. Vernon, 1 Vern. 277; Strong Eq. Pl. § 49; Smith v. Swormstedt, 16 How. (U. S.) 288 ; Florida Cent. R. R. Co. v. Schutte, 103 U. S. 118, 140 ;People v. N. Y. Central R. R. Co., 13 N. Y. 78, 80 ; Knight v. Knight, 3 Beav. 173 ; Carry v. Carry, 2 Sch. & Lef. 189 ; Warner v. Bates, 98 Mass. 274 ; Bisphamis Eq. §§ 71-74 ; Livingston v. Mayor, &c. of N. Y., 8 Wend. 85, 98, 99; Drake v. Hudson Riv. R. R. Co., 7 Barb. 508, 535 ; Imlay v. Union Branch R. R. Co., 26 Conn. 255 ; Fearing v. Irwin, 55 N. Y. 486; Coster v. Mayor, &c. of Albany, 43 Id. 399 ; Heyward v. Mayor, &c. N. Y., 7 Id. 314; Matter of Seventeenth street, 1 Wend. 262 ; Matter of Lewis street, 2 Id. 472 ; Smyles v. Hastings, 22 N. Y. 217; Fonda v. Borst, 2 Keyes, 48 ; Cox v. James, 45 Id. 557; Badeau v. Mead, 11 Barb. 328 ; McCready v. Thompson, 1 Dudley (S. C.) 131; Robeson v. Pittenger, 1 Green Ch. (N. J.) 57; Durel v. Boisblanc, 1 La. An. 407 ; Gerber v. Grabel, 16 Ill. 217; Lawrence v. Railway Co., 16 Ad. & E. (N. S.) 643 ; Reg. v. Bradford Nav. Co., 34 Law J. Q. B. 191 ; Bostock v. North Staffordshire Ry. Co., 3 Smale & G. 283; Kennedy v. Indianapolis, 103 U. S. 599 ; Trustees of Columbia College v. Thatcher, 10 Abb. N. C. 235 ; Hinchman v. Paterson Horse Ry. Co., 2 C. E. Green, 76 ; Wiynehamer v. People, 13 N. Y. 378 ; Bertholf v. O’Reilly, 74 N. Y. 509 ; Morrisson v. Semple, 6 Binney, 94 ; Jackson v. Housel, 17 Johns. 281 ; San Mateo Water Works v. Sharpstein, 50 Cal. 284 ; St. Peter v. Dennison, 58 N. Y. 416; West River Bridge v. Dix, 6 How. (U. S.) 507 ; Richmond v. Railroad Co., 13 Id. 71; State v. Noyes, 47 Mc. 189 ; Morley v. Pragnell, Cro. Car. 510 ; Fish v. Dodge, 4 Den. 311; Morris v. Brower, Anthon N. P. 368 ; Carhart v. Auburn Gas Co., 22 Barb. 297 ; Crump v. Lambert, L. R. 3 Eq. 409 : Bradley v. Gill, Lutw. 69 ; Soltan v. De Hild, 2 Simons (N. S.) 133; Walker v. Brewster, L. R. 5 Eq. Cas. 25; Dorgan v. Waddell, 9 Ired. 244; Crooke v. Anderson, 23 Hun, 267; Green v. London General Omnibus Co., 7 C. B. (N. S.) 290 ; Milarkey v. Foster, 25 Am. R. 531 ; Dennis v. Sipperly, 17 Hun, 69; Pacific Ry. Co. v. Andrews, 27 Kans.; Beckett v. Midland Ry. Co., 3 C. P. 82; Chamberlain v. R. R. Co., 2 B. & S. 605 ; Carli v. Stillwater Street Ry. Co., 25 Alb. L. J. 156 ; Western Penn. Ry. Co. v. Hill, 6 P. F. Smith, 460 ; Duncan v. Findlater, 6 Clark & F. 908; London & N. W. Ry. Co. v. Bradley, 3 Mac. & G. 341; Caledonian Ry. Co. v. Ogilvy, 2 Macq. Sc. App. 246 ; Boulton v. Crowther, 2 B. & C. 706 ; Whithouse v. Birmingham Canal Co., 27 L. J. Exch. 25 ; Crawford v. Village of Delaware, 7 Ohio St. 459, 466, 747 ; Barron v. Mayor, 2 Amer. Jurist, 210 ; Bunn v. People, 45 Ill. 397, 419 ; Buffalo, &c. R. R. Co. v. Ferris, 26 Tex. 588, 602 ; Eaton v. B. O. & M. R. R. Co.,. 51 N. H. 504 ; Stone v. F. P. & N. W. R. R. Co., 68 Ill. 394; Eagle v. Charing Cross Ry. Co., L. R. 2 C. P. 638; People v. Supervisors of Orange, 17 N. Y. 241 ; New land v. Marsh, 19 Ill. 384 ; Bigelow v. West Wisc. R. R. Co., 27 Wisc. 478 ; Attorney General v. Eau Claire, 37 Wisc. 400 ; Henderson v. Mayor, &c. of New Orleans, 5 Miller (La.) 416; Thompson v. Grand Gulf R. R. Co., 3 How. (Miss.) 240 ; Davis v. Mayor, &c. of N. Y., 14 N. Y. 506, 525 ; Osburne v. Barton, Anno. 26 Eliz. Choyce's Cas. in Chan. 176 ; St. Helens Smelting Works v. Tipping, 11 H. L. C. 642; Parker v. Winnipiseogee Co., 2 Black (U. S.) 545 ; Musselman v. Marquis, 1 Bush (Ky.) 463 ; Lord Manners v. Johnson, L. R. 1 Ch. D. 663; Lloyd v. London, C. & D. Ry. Co., 2 D. J. & S. 568.)

Joseph H. Choate, on behalf of owners of property abutting on streets occupied by elevated railroads in various parts of the city, but not claiming the fee in the land constituting the streets.—I. Under whatever law the land for the street may have been acquired— whether under the act of 1813 or under legislative enactments dating from the time of the cession of the Dutch to the English, or still earlier cases, where the facts cannot be ascertained—the same principle must regulate the rights of all abutting owners who have ceased to have any legal title in fee to the land which constitutes the streets in front of them. There cannot be one law for Wall street and another for Twenty-third street—one for those opened under the act of 1813 and another for those opened under prior or subsequent enactments. The claim of the abutting owners is that they have the right to have kept open forever, the street in front of their premises as a highway throughout its whole extent, but this elevated railroad in many places, and signally at the street crossings where its station are constructed, constitutes what is equivalent to and indistinguishable from a building roofed entirely over, extending from sidewalk to sidewalk, and in many places almost from wall to wall, sustained by columns in front of each man’s door, <ach column occupying not less than thirty inches in diameter, and a bridge upon these pillars on which the flooring and the roofing of the enclosed stations rest. The abutting owners have some right, some interest, some relation to the street different from that of other persons. If that interest, right, or relation is in the nature of private property it is protected by the constitution. This relation differs not only in degree but in kind from the relation of other members of the community to the highways. In Wall street property is worth hundreds of dollars a square foot, because it haw. this interest or right, whatever you may call it, of abut ting in that great mart of trade. Defendants claim that the legislature has unlimited right, to authorize structures in that street to the utter annihilation of the whole street.

It is conceded that a city may hold absolute unqualified fee as incase of the market (Heyward v. Mayor, &c. of N. Y., 7 N. Y. 314), but the street property, however acquired, is held in trust. The city cannot sell the land that forms the road bed of the street; cannot block up any part of it; cannot divert it to any other use, public or private, inconsistent with the free right of everybody to use every inch of it for a public highway. Under the act of 1813, for instance, a strip of land a hundred feet wide was taken through the farms of the owners and only nominal compensation allowed. It was objected by the owners that they received no equivalent. The courts held that the right to front forever upon an avenue a hundred feet wide which was secured by the trust was adequate compensation, for it was equivalent to the money value of the land taken. This decision decided the present controversy. If this right to be enjoyed under the trust was property for the purpose of compensating the land-owner for the land taken, it is property forever after. If nothing has been taken from the land-owners by the elevated roads, then what was given to them before, when the city took the land ? It cannot be said that nothing was given them, because the courts sustained the constitutionality of the proceeding by declaring that what was given to them, namely, the right to have the street forever free and open, was property and payment. This right has now been taken without compensation.

The dominion of the legislature over the streets opened under statute is not absolute and unlimited. It has necessary limits, the chief of which is, that it cannot and must not be diverted from public use as a highway ; neither the whole nor any part of it must or may be so obstructed as that the whole public and the abutting owners may not use every inch of it for the common purposes of a highway, nor can it be put, by the authority of the legislature, to any use that is practically inconsistent with its'general use by the citizens and the abutting owners as a highway.

' The use now attempted to be made of it, for an elevated railroad, is certainly inconsistent with such use.

Again, the street cases, commonly so called, wherein it has been uniformly decided since the contrary holding was reversed in 2 Wendell, that where use of land had once been dedicated to the public by the abutting owner for the purpose of a highway, and afterwards came to be opened by proceedings duly taken under the act of 1813, the owner was entitled to only nominal damages, ordinarily fixed at one dollar, are wholly irreconcilable in principle with any other view of the rights of the abutting owners than that which we now assert; especially when considered in connection with the, cases which settle the law of this State as to the rights of an owner of land dedicated for a highway upon which a steam railroad is afterwards constructed.

In the former class of cases it was distinctly held that where land has been dedicated for a street, and afterwards the public proceeds to acquire the fee, under the street opening acts, the owner is entitled to only nominal damages, because nothing is taken from him in substance beyond that which he had already parted with voluntarily. By the dedication he had consented to the perpetual use of the land by the public for a street, and it was held that the acquisition by the public of the fee of the land in the street for the same and only the same purpose, took nothing from him for which he was entitled to compensation. That one dollar, that is, nominal compensation, or, in other words, no compensation at all, was just compensation within the meaning of the constitutional provision regulating the exercise of the power of eminent domain, which is, to all practical purposes, holding, that taking the fee for a street, from the owner who had already dedicated the land for a street was, in reality, taking nothing from him.

In the latter class of cases, and notably in the Williams, Craig and Henderson cases, reported in the 16th, 39th, and 78th New Yorlc, the last being as recent as November, 1879, it has been held with equal distinctness, so that it must be conceded to be the settled law of this State, that an abutting owner, who has dedicated the land in front of his premises constituting the highway, to street purposes, but from whom the fee has not been taken, is entitled to substantial damages for the occupation and use of that highway by a railroad company, for the ordinary purposes of a steam railroad. The Williams-Henderson case presents an instance of a man who would have been entitled, under the street cases, to only $1 for converting his dedication into a fee in the public for street purposes, recovering nearly $20,000 as damages against the New York Central Railroad Company for occupying it permanently for an ordinary steam railroad.

Taking these two classes of cases together, the conclusion seems inevitable that the owner who has dedicated his land for a street gets his substantial compensation for the building of the steam railroad in front of his premises, not-by-virtue of the naked fee which remains in him, and which the law declares to be of no value, but by virtue of what is taken from him as owner of the property fronting on the street, and out of which, value is taken by the construction and operation of the railroad. Taken, together, these two classes of cases demonstrate that there is no real and practical difference in the aspect in which we are now considering them, that is, as to the right to have the street kept open, its whole length, breadth and height for ever as a highway, between the rights of the abutting owners; whether the street be opened under the act of 1813 or by original dedication.

The decided cases are not inconsistent with this claim. They hold simply the public dominion in respect to the surface and the soil. Our interest is a right in respect to and over the space above the surface. It has been held then that this peculiar right of the abutting owners did not include anything that was common to everybody else ; that it did not include an exclusive right of passage over the surface, that it did not include any right of property in the soil itself, or any part of that soil, it did not include anything personal to a man in the nature of his occupation, to his convenience, to his taste. It related to the abutting property, and was a part of that, it was no mere matter of convenience in getting to or from it, no right to interfere with any regulation of the surface ; the public may change its grade, it may do anything with it inconsistent with the use of any part of it as a street; there is no right to claim consequential damages for any legitimate use of its surface under the authority of the public. Now, it being clear that all these things were eliminated, still there was something left, something which the courts have said was property, given in exchange. What was it ? If it did not relate to the surface, to the road-bed, then there is nothing else under the sun to which it could relate, but this space above the surface, and this right secured by the grant or trust to have that kept forever open and unobstructed.

The case of People v. Kerr, 27 N. Y. 188, only held that the legislature has merely a limited dominion over the use of the streets, and that its true limits were reached when the whole surface was occupied by the rails of horse railroad companies, which was allowed, because the court said that, that did not, even as to the location of the rails themselves, interfere with the free and undisturbed use of the public, and the abutting owners over it as a highway throughout every inch of it.

The case of Kellinger v. Forty-second street R. R. Co., 50 N. Y. 206, sustains this interpretation. So of Matter of Boston & Albany R. R. Co., 53 N. Y. 574, and Bloomfield v. Rochester Gras Light Co. v. Calkins, 62 Id. 386.

•' The question now presented is an open one, that it has never yet been decided or considered by this court; that it is in fact now presented for the first time, and that no principle has been announced, no rule of law established, which is inconsistent with the claim of the abutting owners, that they have an interest and a right—which amounts to a right of private property— to have the portion of the streets in front of their respective premises kept open forever throughout its entire extent as a public highway, and that some portion of that right of private property is necessarily taken away by the construction of one of- these elevated railroads in the street in front of their premises.

David Dudley Field (Dorsheimer, Bacon & Deyo, attorneys), for respondent.—I. Plaintiff does not own the fee of half the street opposite his lots (Barney v. Keokuk, 94 U. S. 340). The mesne conveyances did not transfer it to him (Webber v. Eastern R. R. Co., 2 Met. 150; English v. Brennan, 60 N. Y. 609). The fee vvas.not conveyed to the original grantees (Dunham v. Williams, 37 N. Y. 251; Bartow v. Draper, 5 Duer, 130; Whitney v. Mayor; 1 Hoffman on Rights of Corp. 199; Furman v. Mayor, &c., 5 Sandf. 16 ; 10 N. Y. 508; Kellinger v. Forty-second Street R. R. Co., 50 N. Y. 206; Marshall v. Guion, 11 N. Y. 461).

II. An injunction will not issue to prohibit a public work, which the law has .authorized, upon the theory that when completed it may cause the plaintiff loss. (L.) The abutting owner has no property in the street, whatever, and has no right there at all, except in common with the public. (2.) If however, the plaintiff had such an easement in the street as could be called his property, there is no provision in our law for the ascertainment beforehand of its value, so that it could be paid for in advance of the construction of the road. Therefore, to hold that an injunction may issue to stop the work until such payment is made, would be to hold that it may stop it forever. Under such a doctrine scarce any public work which there was an interest to oppose, could be constructed. (3.) The legislature has power to regulate public or common rights without cotn2>ensation to individuals who may hapipen to suffer inconvenience or loss. Private convenience must yield to the public good, and what is for the public good the legislature is to determine, and not the judiciary (Rad-cliff's Ex’rs v. Mayor of Brooklyn, 4 N. Y. 195; Gould v. Hudson River R. R. Co., 6 Id. 522 ; Williams v. N. Y. Central R. R. Co., 16 Id. 97; Bellinger v. N. Y. Central R. R. Co., 23 Id. 42; People v. Kerr, 27 Id. 188 ; Craig v. Rochester, &c. Ry. Co., 39 Id. 404; Kellinger v. Forty-second Street Ry. Co., 50 Id. 206 ; Henderson v. N. Y. Central R. R. Co., 78 Id. 433; Transportation Co. v. Chicago, 99 U. S. 635; Dill. Mun. Corp. §§ 555-585; Sweet v. City of Troy, 12 Abb. Pr. N. S. 100 ; Dougherty v. Bunting, 1 Sandf. 1).

III. In answer to plaintiff’s claim as abutting owners. (1.) The legislature has duly authorized, and the city has consented to the construction and operation of the defendant’s railway. The rapid transit act (L. 1875, c. 606) has by this court been pronounced constitutional, and the proceedings under it have been declared regular (70 N. Y. 327, 361). (2.) Our law has. provided no means of ascertaining beforehand the proper compensation to be made to the plaintiff, if he be entitled to any compensation for the inconveniences set forth. (3.) This being so, it is not material to the present suit to inquire whether the plaintiff has an easement in the street or any other incorporeal right, or a claim for consequential damages. (4.) Defendant cannot be made answerable for consequential damages suffered after the establishment of the railway (Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234; Matter of Ninth Auenue, Id. 729). If the plaintiff has actually sustained loss from the making and running of the defendant’s railway, it is damnum absque injuria. (5.) If plaintiff has an easement or other incorporeal right in the street, he has it, not as belonging to himself alone, but as belonging to him in common with the whole community. If there be aright of action, it is a public, not a private right, and the action, if one can be maintained, must be brought by the State. As the right is public, so must the redress be. Plaintiff ha.s no property in the right of way through the street, or in the flow of air or light, or in the privacy of his upper story. By property, is meant something which belongs to him, as distinguished from the public. That only can be property, which can be appropriated either by a single person or a class of persons. A right of common is the property of the commoners, and may be appropriated by them, but outsiders cannot participate. That which belongs to the community is not subject to appropriation, unless a part be first severed from the rest. In the present case, the rights of way, light and air, belong to the public.

Tracy, J.

The principal question to be determined in this case is, has the property of the plaintiff been taken for public use within the meaning of the consti tution of this State %

The plaintiff claims that by the true construction of the deed from the city to his original grantors, the bed of Front (then Water) street was included in the grant, and that he is now the owner of the fee of one-half of the bed of Front street in front of his lots. But if this claim be not sustained then he insists that, in the original grant of the premises in question, the city of New York covenanted with his grantors that Front street should be and remain an open street forever ; that this covenant, being for the benefit of the abutting lands, is one running with the land, and the right or privilege secured thereby constitutes property within the meaning of article 1, section 6, of the constitution, which provides that “ private property shall not be taken for public use without just compensation.”

The plaintiff’s lots, Nos. 7 and 9, abutting on Front street, were formerly water lots, or lands under water. These lots and the streets were a part of a larger tract owned by the city, which, prior to 1773, it caused to be surveyed and laid out into streets and lots, and designated upon a map. In May and December, 1773, the city granted and conveyed one of the plaintiff’s lots, with other lands, to one De Peyster, and the other lot to one Ellison. The boundary of the grant on one side began at Dock street, extending easterly across the street, then shown on the map as Water (now Front) street, to what would be the westerly limits of the East River, when the lands should be filled in and the streets mentioned in said grant made and constructed. The plaintiff’s lots are described as being upon the side of Water (now Front) street, as by the survey made of these and sundry other lots by Gferard Bandeen, dated November 10, 1772, and filed in the office of the town clerk, as will more fully appear, with the appurtenances thereto belonging and appertaining. The grantees covenanted and agreed to widen Dock street fifteen feet, and to build and construct a good substantial street as so widened ; to make and construct Water (now Front) street, and also to build and erect a good substantial dock or street on the outward boundary of their respective grants, and the deed then declares, “ Which said several streets shall forever thereafter continue and be for the free and common passage of, and as public streets and ways for, the inhabitants of the said city, and all others passing through or by the same, in like manner as other streets of the same city now are or lawfully ought to be.”

The trial court finds that the grantees made and constructed the several streets mentioned in the grant, and that the plaintiff is now the owner of said lots, upon which is erected a warehouse occupying the entire front and four stories high.

The defendant, insists, and the trial court found, that by the true construction of the deed the bed of Front street was excepted therefrom and never passed to the plaintiffs’ original grantors. The necessary effect of this construction of the grant is to make the convenant found therein, that the several streets shall forever thereafter continue to be public streets a covenant of the city and not of the grantees, for we must assume that the covenant was made by the party who held the title to the bed of the street, and therefore had power to control its use, and not,by one who had no title, and consequently no such power.

If the bed of the street was included in the grant and the title thereto passed to the grantees, then it is even more clear that the covenant must be deemed the covenant of the city, the land designated on the map as a street, with other lands on both sides thereof and abutting thereon, being conveyed to private persons, could not become a street except by proceedings taken for that purpose, or by a dedication of it by the owners to the public use and its acceptance by the public. Mere dedication is not enough ; lands so dedicated do not become a public street until accepted by the public authorities. The construction of the street by the grantees in performance of the covenant on their part would amount to a dedication of the street to public use. The covenant of the city that the streets when constructed should be and remain a public street forever, constitutes an acceptance by the city of the lands so dedicated (City of Oswego v. Oswego Canal Co., 6

N. Y. 257; Lee v. Village of Sandy Hill, 40 Id. 442; Requa v. Rochester, 45 Id. 129).

Assuming the construction placed upon the grant bv the court below to be correct, we have to consider the effect of such a covenant in a grant of land made by a municipal corporation having authority to lay out and open streets and to acquire lands for that purpose. W here an individual conveys village or city lots, designated upon a map as abutting upon a public street, the map being referred to in the deed, it is well settled that the grantee acquires, as against the grantor, a right of way over the strip of land referred to as a street, although the same may not, in fact, be a public street, not having been accepted by the public as such, yet, as between the parties to the grant, the land is deemed to have been dedicated to the public by the grantor, and he cannot thereafter appropriate said lands to any use inconsistent with their use as a public street (City of Oswego v. Oswego Canal Co., 6 N. Y. 257 ; Cox v. James, 45 Id. 557; Smiles v. Hastings, 22 Id. 217; Matter of Lewis St., 2 Wend. 472; Matter of Opening Seventeenth St., 1 Id. 262). The same rule applies to the State or a municipal corporation where it deals with its lands as owner or proprietor (City of Oswego v. Oswego Canal Co., supra). In the case in 1 Wend. 262, the court says: “In such a case the grantee obtains a perpetual right of way over the space called a street.” In 2 Wend, (supra), in such a case, the court says : “A covenant will be implied that the purchaser shall have an easement or right of way in the street to the full extent of its dimensions.

The city of New York, having power to lay out and open streets and to acquire land for such purposes, had power to dedicate its own lands to such uses and to bind itself by a covenant with its grantees of abutting lands that a particular street should forever be kept as a public street. What interest, then, if any, did the grantees acquire in the bed of the street by such grant and covenant %

M. purchased, land in a village adjoining a public street and it was at the same time agreed between him and the grantor that a triangular piece of land belonging to the latter on the opposite side of the street and in front of the land sold should never be built upon, but should be deemed public property, and the grantor executed to the grantee a deed of the land sold and a bond for the performance of the agreement as to the triangular piece of land, both instruments being proved and recorded. H. afterward purchased of the grantee the land opposite to the triangular piece, after being informed by him of the privilege secured by the bond. Held by the chancellor that H. was entitled to the benefit of the agreement, and that the grantee could not without his (H.’s) consent be permitted to make a new arrangement with the holder of the legal estate in the triangular piece, by which buildings should be erected thereon—that this right or privilege constituted an easement in the triangular piece. It was further held that easements are annexed to the dominant tenement and pass to the grantee of such estate. It was also held that they are also a charge upon the estate of the servient tenement and follow such estate into the hands of those .to whom such servient tenement or any part thereof is conveyed. The same question was again before the chancellor in the cases of Trustees of Watertown v. Cowen, where it was again held that a grantee of a lot adjoining a public square, who has a special covenant, from the original owner of the ground that it shall be kept open for the benefit of his ]and, may restrain the grantor from violating the covenant. It was also held that a covenant in a deed of land not to erect a building on a common square owned by the grantee in front of the premises conveyed is a covenant running with the land and was the grant of a privilege or easement which passed to a subsequent grantee of the estate without any special assignment of the covenant. The principle of these cases was re- < mtly affirmed -by this court in the case of Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400.

In the case last cited H. conveyed land to S. by deed, and the grantee covenanted for himself, his representatives and assigns, not to erect or cause to be erected any building or erection on a certain specified part of the premises conveyed which adjoined the remaining land of the grantee, and it was held, all the judges concurring, that such a covenant, both in respect to the burden and benefit, adheres and follows the respective parcels of land through all the devolutions of title, and the right to enforce the covenant passed to the plaintiff as subsequent grantee of H. of the dominant tenement, and the covenant would be enforced by a court of equity against a subsequent purchaser of the servient tenement, who purchased with notice of the covenant.

These cases are directly in point, and it follows that by the law of this State, as interpreted and held by its highest courts for the last fifty years, withoht criticism or doubt, the grantees of the city, by force of their grant, acquired the right to have Front street kept forever as a public street. The street has thus became what is known to the common law as the servient tenement, and the lots abutting thereon the dominant tenement. Such servitude constitutes a private easement in the bed of the street attached to the lots abutting thereon and passed to the plaintiff as the owner of such lots.

That an easement is property within the meaning of the constitution cannot be doubted. This was expressly adjudicated by this court in the case of Arnold v. Hudson River R. R. Co. Arnold owned a nail factory, together with the right to take a certain amount of water from a creek and to convey it over or under the surface of intervening lands to such factory to propel machinery. For this purpose he built a trunk about six feet above the surface, through which the water was conveyed. In 1850 the defendant, having acquired title to a portion of the intervening lands, constructed tracks thereon, removed the portion of the trunk over said surface without Arnold’s knowledge, and constructed another trunk under the lands, through which the water was conveyed and then raised by a penstock into the old trunk near the factory. Held, by the concurrence of all the judges voting, that Arnold’s easement was property within the meaning of article 1, section 6 of the constitution, and therefore could not nor could any portion of it be taken for public use without compensation. In Doyle v. Lord, 64 N. Y. 432, this court held that a lessee of a store had an easement for the purpose of light and air in a yard attached to the building. In Sixth Avenue R. R. Co. v. Kerr, 72 N. Y. 330, this court also held that an easement in a public street may be condemned and takdn for public use.

The next question to be considered is, Has the plaintiffs property been taken by the defendant within the meaning of the constitution of this State? To constitute such a taking it is sufficient that the person claiming compensation has some right or privilege secured by grant in the property appropriated to the public use, which right or privilege is destroyed, injured or abridged by such appropriation. Has the plaintiffs easement in Front street been destroyed or injured by the appropriation of the street to the uses of the defendant’s road ? As we have seen, the plaintiff acquired nothing more than a right to have the street kept as a public street, and this must be deemed to be held subject to the power of .the legislature to regulate and control the public uses of the street. This brings us to the question whether the occupation of the street by the defendant’s road is compatible with or destructive of its use as a public street.

Front street is about forty-five feet in width, the roadway between the curbstones being about twenty-four feet wide. The trial court has found as a fact that the defendant’s road is to be constructed upon a series of columns about fifteen inches square, fourteen feet six inches high, placed about five inches inside the sidewalk, and carrying cross girders which support four sets of longitudinal girders, upon which are placed cross ties for three sets of rails for a steam railroad ; that the girders are thirty-nine inches deep and the longitudinal girders thirty-three inches deep ; that the line of columns abridges the sidewalk and correspondingly interferes with the street and thoroughfare where such columns are located thereon. That the structure as proposed on Front street will fill so much of the carriageway of the street as is about fifteen feet above the roadway. The effect of such structure the court finds will be to some extent to obscure the light of the abutting premises opposite to it, and will to some extent impair the general usefulness of the plaintiff’s premises and depreciate their value.

Can the street be lawfully appropriated to such a structure without making compensation to the plaintiff for his easement therein ? This is a question of power. If the legislature has power to authorize such a structure without compensation, its exercise cannot be regulated by the courts. If one road may be authorized to be constructed upon two series of iron columns placed in the street, another may be authorized to be supported upon brick columns or upon brick arches spanning . the street. If a superstructure may be authorized which spans, the entire carriage why at fifteen feet above the bed of the street, one may be authorized, which spans the entire street from building to building, thus excluding light and air from the street and from the property abutting thereon. Thus an open street would be converted into a covered way, and so filled with columns or other permanent structures as to he practically impassable for vehicles. The city undertook and agreed with the plaintiff’s grantors that Front street, when constructed by them, should “forever thereafter continue and be kept as a public street in like manner as other streets of the same city now are or lawfully ought to be.” This fixes with definiteness and precision the character of the street which the parties to the contract intended to secure. As the other streets of the city were, or lawfully ought to be, so this street was to be. It was to be an open street, one which would furnish light and air to the abutting property, and a free and unobstructed passage to the inhabitants of the city. A covenant to keep a strip of land open as a public street forever is a covenant not to build thereon, and the city’s covenant brings this case directly within the principle of the cases of Hill v. Miller, and Phoenix Ins. Co. v. Continental Ins. Co., Trustees of Watertown v. Cowen, supra.

While the legislature may regulate the uses of the street as a street, it has, we ■ think, no power to authorize a structure thereon which is subversive of and repugnant to the uses of the streets as an open public street. Whether a particular structure authorized by the legislature is consistent or inconsistent with the uses of the street as a street must be largely a question of fact, depending upon the nature and character of the structure authorized. The court below found that the series of iron columns abridge the street, and the superstructure erected thereon obscures the light to the adjoining premises and depreciates the value of the plaintiff’s property. The extent to which plaintiff’s property is appropriated is not material ; it cannot, nor can any part of it, be appropriated to the public use without compensation. We think such a structure closes the street pro tanto, and thus directly invades the plaintiff’s easement in the street as secured by the grant of the city.

Whatever view be taken of the facts of this branch of the case, the same result must be reached. If the title to the bed of the street passed to the grantees of the city, then the public acquired a mere easement in the street resulting from its dedication to public use, the easement resting upon the express covenant of the owners of the fee that the street shall be kept as a public street forever. The fee remained in the owner making the dedication, and he having sold lots abutting upon the street, the purchaser, as we have already seen, obtained a perpetual right of way over the space called a street to the full extent of its dimensions. Whether the bed of the street was excepted from the grant of the city, and the title thereof never vested in the grantees, or whether the bed of the street was included in the grant and passed to such grantees, is of little importance, as in either event the plaintiff has a private easement of a right of way in the street, coupled with an express covenant that the.entire space 'marked on the map as Front street shall forever be kept as a public street.

The defendant’s railroad, as authorized by the legislature, directly encroaches upon the plaintiff’s easement and appropriates his property to the uses and purposes of the corporation. This constitutes a taking of property for public use: It follows that such a

taking cannot be authorized except on condition that the defendant makes compensation to the plaintiff for the property thus taken.

The conclusion here reached is not in conflict with the determination of this court in the case of People v. Kerr (27 N. Y. 88); Kellinger v. Forty-second Street R. R. (50 N. Y. 206), and other similar cases. We agree with Church, Ch. J., in the case last cited, that it is not quite clear as to what was intended to be decided by the court in People v. Kerr, relative to the rights of abutting owners. In that case all of the private parties were abutting owners upon streets that had been opened under the act of 1818, whereby the city acquired the fee of the street, “in trust, nevertheless, that the same be appropriated and kept open for or as part of a public street, avenue, square or place, forever, in like manner as the other public streets in said city are, or of right ought to be.” The only question which could have been there presented and determined, so far as the abutting owners were- concerned, was whether the use to which the street- was appropriated by the act authorizing the construction of what, are known as horse or street railroads appropriated the streets to a use inconsistent with their use as open public streets. Whether the rights of abutting owners in the streets were invaded, depended upon the nature and extent of the interest acquired by the public in the lands embraced therein. It is well settled that thé State, in the exercise of the right of eminent domain, or a corporation having the delegated power, may acquire such an interest or estate as in the judgment of the legislature the public services may demand (Heywood v. Mayor of New York, 7 N. Y. 314). It may acquire the property in fee simple absolute, or a qualified fee, or an easement merely, or the right to a temporary or permanent use of the property (Sixth Avenue R. R. Co. v. Kerr, 72 N. Y. 333), and the compensation to be made is regulated by the extent of the interest acquired. The proceedings by which land is acquired by the exercise of the right of eminent domain amount to a statutory conveyance of the same to the public or the corporation, and there is no distinction between such a conveyance and a voluntary conveyance made for a public use. Where property is acquired for public use by proceedings in invitum, the statute which authorizes the acquisition constitutes the contract between the citizen and the public, and when the interest has once been acquired it cannot be changed or enlarged without further compensation. It is only when the title is acquired in fee simple absolute that the property may be converted to other public uses or, the particular use ceasing, it may be sold, and conveyed, and converted to private uses (Heywood v. Mayor of New York, 7 N. Y. 314; Brooklyn Park Commissioners v. Armstrong, 45 Id. 239). But where the public acquire, not the property itself, but the mere right to use it for a particular purpose, the title of the former owner is not extinguished, but is so qualified that it can only be enjoyed subject to the easement. In such case the title of the public is limited to the particular -use, with the powers and privileges incident thereto, such as the right to use the timber and soil for the purpose of constructing or maintaining the street. The former proprietor still retains his exclusive right in"all,mines, quarries, springs of.water, timber and earth, and may - enjoy the beneficial ownership of the fee for every purpose not incompatible with, the public use for which the land was taken, and may maintain trespass, ejectment or waste (Jackson v. Hathaway, 15 Johns. 447), and the use ceasing, the title reverts to the former owner, freed from the public easement.

By the act 1813 the city acquired the fee in the street, in trust, however, for a particular public use. Conceding that the trust is for the benefit of the abutting owner, as well as for" the public, the only right which he has in the street is the right to insist that the trust be faithfully executed. So long as the street is kept open as a public street the abutting owner cannot complain.

The question presented in the case of People v. Kerr was whether the particular structure there authorized was inconsistent with the continued use of the streets as open public streets of the city. Whether it was or not was a question of fact dependent upon the nature and character of the structure therein involved. The court found and determined that it was not inconsistent with the public uses of a public street, but was in aid of such uses. And in Kellinger v. Forty-second Street R. R. Co. (50 N. Y. 206), this court limits the decision in the case of People v. Kerr to a “ simple declaration that the legislative authority to construct a railroad on -the surface of the street without a change of grade was a legitimate exercise of the power of regulating the use of public streets for public uses.” The question whether the abutting owners upon streets opened under the act of 1813 had the right to prevent their being converted to a use destructive of their existence as public streets was not deemed by the court to be invo1 veri in that case. This appears from the report of the case. Judge Davies did not sit in the case. Bose* krans, J., was of the opinion that the power of the legislature extended only to governing the mode of passing upon the surface of the streets, and Judges Balcom and Marvin, concurring in the result, stated, that “There might be a private right in the owners adjoining the street to have free access to their premises, held under the original proprietor of the tract embracing the street, of which such owner could not be deprived by the assent or surrender of the public, or of the general owner of the fee in the street, or both, without compensation for his. incidental interest or easement in the street. This they said to preclude the conclusion that any such interest had been disregarded. They saw no such question in the case.” But the question which was not seen to be involved in that case is the only question involved in the case now under consideration. The question here presented is not whether the legislature has the power to regulate and control the public uses of the public streets of the city, but whether it has the power to grant to a railroad corporation authority to take possesion of such streets and appropriate them to uses inconsistent with and destructive of their continued use as open public streets of the city ? Had the act in that case authorized the corporations to take permanent and exclusive possession of portions of the streets, to build sidings and to permanently occupy them with rows of cars standing in front of the stores and residences of abutting owners, and to erect permanent depot buildings within the limits of the streets, for the accommodation of their passengers, we cannot doubt that a different result would have been reached in that case. The fact that- a particular structure is found to be consistent with the uses of a street is no evidence that a different-structure is not inconsistent, with such uses.

The conclusion reached in the present case is based upon the character of the structure here involved. The language of Weight, J., in People v. Kerr, that the abutting owners have no property, estate or interest in land forming the bed of the street in front of their respective premises, to be protected by the right of eminent domain, must be construed with reference to the point then being considered. This court had held, in the case of Williams v. New York Central R. R. Co. (16 N. Y. 107), that where the public had acquired a mere right of way over the land of another, the laying down of railroad tracks and constructing a steam railroad in the streets of a city was an enlargement of the use understood and contemplated by the parties at the time the land was acquired, aud imposed an additional burden upon the fee, and that such act could not be authorized without compensation to the owner. This case was cited and relied upon in support of the claim of the abutting owners, but the answer was, that the abutting owners did not own the fee of the street; that such fee, being in the public, the legislature might lawfully appropriate it to any public use consistent wdth the trust for which it was held, notwithstanding such use of a street may not have been known or contemplated at the time the land was acquired. Having parted with the fee, the abutting owner could not maintain trespass or waste, and against an act which did nothing more than to impose an additional burden upon the fee he could not invoke the inhibition of the constitution, that private property shall not be taken for public use without compensation. Thus understood, we think the language of Wright, J., is not subject to criticism, and furnishes no support to the claim now made, that the owner whose lands were taken and are now held in trust, to be appropriated and used as open public streets forever, has no standing in court to insist that the trust shall be kept and that the streets shall not be destroyed. This precise question was before the supreme court of the United States in the case of Railroad Company v. Schurmeir (7 Wall. 272). In deciding the case that court says : “Attempt is also made to justify the acts of the respondents (the railroad company) as grantees of the state, upon the ground that the complainant, in dedicating the premises to the public as a street, levee, and landing, parted with all his title to the same, and that the entire title rested in fee in the state. . Respondents rely for that purpose upon the statute of the territory of Minnesota. Suppose the construction of that provision, as assumed by the respondents is correct, it is no defense to the suit, because it is nevertheless true that the municipal corporation took the title in trust impliedly, if not expressly, designated by the act of the party in making the dedication. They could not, nor could the state, convey to the respondents any right to disregard the trust or to appropriate the premises to any purpose which would render valueless the adjoining real estate of the complainant.”

That this trust, created by the act of 1813, was intended to be for the benefit of the abutting owner, as well as for the public, we cannot doubt. City property has little or no value disconnected from the streets upon which it abuts. The opening of a city street makes the property abutting thereon available for purposes of trade and commerce, and greatly enhances its value. The act of 1813 proceeds upon the assumption of this well known fact, and the damages sustained by reason of the taking were assessed in view of the trust assumed by the public, that such lands were to be kept as open public streets forever. The public did not assume to take the lands in fee simple absolute, but took and paid for a lesser estate, and in pursuance of the theory of the statute, that the abutting owner has a special interest in the street, the cost of the lands was immediately assessed back upon the abutting property. All the owner has ever received for the lands taken under this act is the benefit accruing to his abutting property by reason of the trust for which the lands are held. Having surrendered his land in consideration of the trust assumed by the public, if the trust can now be abrogated and the streets surrendered to the uses and purposes of a railroad corporation, it follows that private property may be taken for public use against the consent of the owner, and without compensation.

We have examined the other cases cited by the learned counsel for the respondent, and in none of them do we find authority for the claim here made. The case of Transportation Co. v. Chicago (99 U. S. 635) is not, in point. The injury there complained of was necessarily done in the extension of a city street. The interruption was temporary, ceasing with the completion of the work. This case is decided upon the elementary principle that the public have a right to make such use of the land taken for a street as may be deemed necessary for its proper construction, repair or maintenance. Within this power is included the right to fix the grade of the street, and to change such grade from time to time as the necessities of the public may require ; but whether the grade be elevated or depressed it is still a public street, to which the public have the right of free access, subject to such police regulations as may be adopted by the public authority having charge and control of the same.

The argument has been pressed upon our attention with great ability that as railroads, like streets, are intended to facilitate trade and commerce, and lands taken for either are taken for public use, the legislature may, in its discretion, appropriate the public streets of our cities to the railroad corporations, and this without reference to the form of their structure or the extent of the injury wrought upon property abutting thereon.

This is a startling proposition, and one well calculated to fill the owners of such property with alarm. It cannot be that the vast property abutting on the streets of our great cities is held by so feeble a tenure. This court has repeatedly held that such a rule has no application where the abutting owner holds the fee of the bed of the street, and we are of opinion that in cases where the public has taken the fee, but in trust, to be used as a public street, no structure upon the street can be authorized that is inconsistent with the continued use of the same as an open public street. The obligation to preserve it as an open street rests in the contract written in the statute under which the lands were taken, and which may not be violated by the exercise of any legislative discretion. Whatever force the argument may have as applied to railroads built upon the surface of the street without change of grade, and where the road is so constructed that the public is not excluded from any part of the street, it has no force when applied to a structure like that authorized in the present case. The answer to the argument is that the lands taken for a particular public use cannot be appropriated to a different use without further compensation ; that the authority attempted to be conferred by the legislature upon the defendant, to take exclusive possession of portions of the public street and to erect a series of iron columns upon either side thereof, upon which a superstructure is to be erected, spanning the street and filling the roadway at fifteen feet above the surface, thus excluding light and air from the adjoining premises, is an attempt to appropriate the street to a use essentially inconsistent with that of a public street, and in respect to the land in question, violates the covenant of the .city made with the plaintiff’s grantors, and in respect to lands acquired under the act of 1813 violates the trust for which such lands are held for public use.

The argument drawn from the great benefit which these roads have conferred upon the city of New York can have but little weight in determining the legal question presented in this case. No doubt these roads have added much to the aggregate wealth of the city of New York and have, greatly promoted the convenience of its citizens; but the burden of so great a public improvement cannot rightfully be cast upon a few of its citizens by appropriating their property to the public use without compensation. The inhibition found in the. constitution against the right of the sovereign to appropriate private property to public use without making compensation therefor, was intended to secure all citizens alike against being compelled to contribute unequally to the public burdens.

We are of the opinion that the law under which the defendant is incorporated authorizes it to acquire such property as may be necessary for its uses and purposes upon making compensation therefor. This was substantially determined in the Matter of the New York Elevated Road, 70 N. Y. 327.

We have reached in this case the following conclusions :—

First. That the plaintiff, by force of the grant of the city to his grantors, has a right' or privilege in Front street, which entitles him to have the same kept open and continued as a public street for the benefit of his abutting property.

Second. That this right or privilege constitutes an easement in the bed of the street which, attaches to the abutting property of the plaintiff^ and constitutes private property, within the meaning of the constitution, of which he cannot be deprived without compensation.

Third. That such a structure as the court found the defendant was about to erect in Front street, and which it has since erected, is inconsistent with the use of Front street as a public street.

Fourth. That the plaintiff’s property has been taken and appropriated by the defendant for public use without compensation being made therefor.

Fifth. That the defendant’s acts are unlawful, and as the structure is permanent in its character, and, if suffered to continue, will inflict a permanent and continuing injury upon the plaintiff, he has the right to restrain the erection and continuance of the road by injunction.

Sixth. That the statutes under which the defendant is organized authorize it to acquire such property as may be necessary for its construction and operation by the exercise of the right of eminent domain.

Seventh. In view of the serious consequences to the defendant, we think no injunction prohibiting the continuance or operation of the road in Front street should be issued, until the defendant has had a reasonable time after this decision to acquire the plaintiff’s property by agreement, or by proceedings to condemn the same.

Andrews, Oh. J., Rapallo and Danforth, JJ. concurred, Miller, Earl and Finch, JJ., dissented.

The complaint in the action above reported alleged:

“ 1. That the plaintiff is the owner of the premises known as Nos. 7 and 9 Front street^ in the city of New York.
“ 2. That the said premises were conveyed to the plaintiff by Reciting name of grantor, date and recording of deed, and consideration, and quoting description of premises].
3. That since the said premises were so conveyed to this plaintiff to the present time he has continuously been the owner and has been seized and possessed of them by an absolute title in fee-simple, and that at all times he has liad the full and free use and enjoyment of the said premises, and that he has paid taxes thereon to the city of New York to a large amount.
, “4. That the plaintiff’s title to the said premises is derived through two grants or deeds, both made by the corporation of the city of New York Reciting deeds referred to in statement of case above, with dates, record, names of parties, description, reservation of rent and subequent commutation thereof].
“5. That the street which in the said description is called Water street, is the street which is now known as Front street, and that, prior to the execution of said grants or deeds, such street was projected across the said water lots so granted and conveyed.
“That the said premises so granted and conveyed consisted of water lots; that the same were subsequently filled in by the owners at the time; and that, as the same were so filled in, the street so projected was left; and that it subsequently became the street now known as Front street.
“ That this was done shortly after the execution af the said grants or deeds.
“That by the said grants or deeds, the title in the bed of such proposed street passed to the grantees; and that when, upon the filling in of such water lots, the said street was left, it was by the acquiescence of the grantees at the time, under the said grants or deeds; and that the only right which was acquired or retained by the public, or by the said corporation of the city of New York, in the said street, if any, was of passage and of use for ordinary street purposes.
“ 6. That the title of the plaintiff to his said premises Nos. 7 and 9 Front street, is derived by various mesne transfers of title from the said grantees of the rhayor, aldermen and commonalty of the city of New York, and that by such mesne transfers, there were transferred premises abutting on what is now Front street, and also that portion of Front street, in front of such premises, to the center line of the street.
“ 7. That the plaintiff, by his said deed, became seized and possessed of the half of Front street immediately in front of his said premises.
“ 8. That upon the plaintiff’s said premises is erected a large and valuable brick warehouse, occupied by the plaintiff for business purposes, and now used for his office and as a storage warehouse.
“ 9. That Front street, in front of the plaintiff’s premises, is a narrow street, only about twenty-five feet wide between the curbs, with a sidewalk on each side, only about five feet wide.
“10. That the defendants claim to be a corporation, created and existing by and under the act entitled “An act to authorize the formation of railroad corporations, and to regulate the same,” passed April 3, 1850, and the several acts amendatory thereof.
“11. That the special rights and privileges which the defendants claim, are under the following acts of the Legislature [reciting by title and dates of passage, acts of April 3, 1867; June 3, 1868; June 17, 1875; June 18, 1875].
“ 13. That the defendants are, and for some time past, they have been maintaining and operating a railroad running north from Battery Place, through Greenwich street and other streets in the city of New York; and that at the time of the legislation hereinbefore referred to, the defendants’ said railroad was the only elevated railroad in existence in this state; and that no other elevated railroad has ever yet been constructed or used, or operated in this state, except the said railroad of the defendants.
“ 13. That such railroad is supported upon a line of columns placed at the edge of the sidewalk; that the frame supporting the rails of said railroad rests upon such columns; that upon such frame are laid railroad tracks; and that over the railroad thus constructed, the defendants every day run many trains of cars propelled by steam.
“ 14. That the said railroad is so constructed, as that the tracks are higher than the floor of the second story of buildings upon the line; that the tracks extend over the sidewalk toward the buildings, so that but a short distance or space is left between the side of the cars and the line of the buildings; that the smoke from the engines enters the buildings upon the line when the windows are open; that grease and oil fall, and cinders and other objects are liable to fall from passing trains; that the trains make a loud and disagreeable noise when passing; that they alarm foot-passengers and frighten horses; that they obscure the light; that they occupy and obstruct the street; and that the existence of such a railroad very seriously interferes with the ordinary street use, and very seriously diminishes the value of the property on the line.
“ 15. That under the acts hereinbefore referred to, the defendants claim the right to extend their said railroad south from Battery place, across the Battery and Whitehall street, to and through Front street past the said premises of the plaintiff; and that, having constructed their road in part as far as Whitehall street within a few days, they have made surveys and done other acts which indicate a determination to build their said railroad through Front street and past the premises of tile plaintiff.
“16. That the defendants have taken no proceedings to condemn the interest of the plaintiff in Front street in front of his said premises for the use of their said railroad.
“17. That they avow their determination, without such proceedings, to construct their said railroad through Front street, past the plaintiff’s premises, and that they publicly declare that- in doing so their said railroad will occupy the middle part of the street; the result of which will be to make Front street at that place almost impassable and almost impossible for use for ordinary street purposes.
“ 18. That as far as the defendants claim that they have any right to do all this, or in fact any right south of Battery place, their claim is under the acts of the legislature hereinbefore referred to.
“ 19. This plaintiff is informed and believes that it has been held by this court in effect, and that the law is, that they have no right so to do. That any laws which purport to confer any such right upon them are unconstitutional and void. And this plaintiff insists that neither under the said acts, nor at all, have the defendants ever acquired any legal right to use Front street for the purposes so designed.
“ 30. That the plaintiff’s said premises are of great value, to wit, of the value of §60,000 and upwards, and that any such use of Front street by the defendants’ railroad will greatly injure the same, to wit, in the sum of $35,000 and upwards.
“31. That the defendants, as this plaintiff is informed and believes, have no pecuniary responsibility; that all their property and rights are encumbered by a mortgage or mortgages, and claims against the same exceeding the value thereof.
“ 33. That the injury which will be done to the plaintiff if the defendants may construct their said road in front of his premises, will be constant and continuous, and that in no way can this plaintiff obtain adequate redress but by the equitable interference of this court in preventing the wrong and injury threatened to him and to his said property by the defendants.
“ 23. Wherefore the plaintiff asks judgment, that the defendants may be perpetually enjoined and restrained from constructing a railroad in Front street in front of or past the plaintiff’s premises, and from any interference with that part of Front street, either by the erection there of their railroad or by making any preparations or arrangements therefor; and that the plaintiff may have such other and further relief, and judgment in the premises as may be appropriate, and the costs of this action.” 
      
       See Whitney v. Mayor, &c. of N. Y., 6 Abb. N. C. 329, 330, note.
     
      
       The case of the City of Oswego v. Oswego Canal Co., 6 N. Y. 257, was cited in Bissell v. N. Y. Central R. R. Co., 26 Barb. 634 (1858), to sustain the view that streets dedicated by individuals to public use, must be adopted or accepted by some express corporate or official act, or by user, distinct and unequivocal, before becoming a public highway. The latter case was reversed in 23 N. Y. 61, but upon other grounds.
      The City of Oswego case was again approved in Trustees of Jordan v. Ortis, 37 Barb. 37 (1862), on the doctrine that a ro.id opened by an individual and us.-d by the public less than twenty years, is not a highway within the meaning of the highway acts, unless it has been laid out as such by the cmnmi.ssioners of highways, etc.
      It is cited in Niagara Falls Susp. Bridge Co. v. Bachmann, 66 
        N. Y. 269 (1876), in support of the proposition that “ to constitute a public highway by dedication, there must not only be an absolute dedication, a setting apart and a surrender to the public use of the land by the proprietors, but there must be an acceptance and a formal opening by the proper authorities or a user.”
      In Devenpeek v. Lambert, 44 Barb. 600 (1865), it was explained as not establishing that it was necessary for the plaintiff to prove that the highway had been ascertained, described and entered of record, to entitle him to maintain this action; but only showing that if he had attempted to establish the highway by dedication and user of less than twenty years he would have been obliged to prove it had been accepted as a public highway by the commissioners, and recorded.
      It was cited in Matter of Ingraham, 4 Hun, 498 (1875), as affirming the proposition “that no formal opening is necessary to establish a street, if it can be done inferentially by user.”
      In Bridges v. Wyckoff, 67 N. Y. 132 (1876), where the sufficiency of the dedication was undisputed (the owner having caused certain lands to be laid out into lots and streets, and a map thereof to be made and filed) and it was undisputed that there was a sufficient acceptance by the highway commissioners, and the parties interested had not united and revoked the dedication before such acceptance,—Held, that plaintiff could not hold the lots fenced in, through the doctrine of adverse possession, because she had taken under a deed in which the street and the right of the public to use it were expressly recognized.
     
      
       The case of Requa v. City of Rochester has been repeatedly followed on the question of the liability of municipal corporations. On the point which is cited in the text, see Bridges v. Wyckoff, 67 N. Y. 132 (1876), where it was held that if all the parties interested had united in a revocation of a dedication before its acceptance by i he public authorities, such a course would have been possible; but the claim by the plaintiff that the erection and maintenance of a fence, inclosing part of the street, was to that extent a revocation, was answered by the fact that in the deeds (under which he had taken) the dedication and the street were expressly recognized.
      Requa v. City of Rochester was also cited in Strong v. City of Brooklyn, 68 N. Y. 16 (1876), and explained as showing that some act of the owner inviting or yielding to public use, is needful for an opening or tin-owing open of a street as a street or way, that is intended by the statute (L. 1862, c. 68, p. 182, § 41).
     
      
       Cox v. James was also relied on in Taylor v. Hopper, 62 N. Y. 649 (1875), in support of the proposition that parties buying land with reference to a map made by grantor, giving the numbers of the lots, mentioning John street, and the deed by its terms conveying to the center thereof, have a right of way over the same, and, as between the parties, the grantor had dedicated it as a street, even if it did not appear that the public authorities had ever accepted it as a public way. And the latter case was followed in Bloomfield v. Ketcham, 25 Hun, 218.
     
      
       Smiles v. Hastings, 22 N. Y. 217, affirming 24 Barb. 44, is explained and approved in Simmons v. Sines, 4 Abb. App. Dec. 247 (1868), as sustaining the principle of a way of necessity, and that such right, being appurtenant to the lands, would pass to persons deriving title from the original grantee.
      In Marvin v. Brewster Iron Mining Co., 55 N. Y. 555 (1874), the decision in Barbour was relied on in support of a position that a claim of adverse possession cannot rest merely upon a non-user. The rights claimed were the subject of an express grant. In such a case, though there be a non-user, if there has been no act of the owners of the surface lands which prevented the exercise of the rights of mining, they still exist.
     
      
       The case of the Hatter of opening Seventeenth street, 1 Wend. 863, was cited in Bissell v. New York Central R. R. Co., 23 N. Y. 64 (1861), to support the rule that a grantor who maps and indicates a street, thereby dedicates and conveys his interest in the same to the center for that purpose, upon conveyance of lots thereon, as between him and his grantees, whether the public has ever accepted it as such or not.
      Also in Adams v. Saratoga & Washington R. R. Co., 11 Barb. 450, in support of the view that where the facts disclose a plain case of dedication for the purpose of a public street, and the adjoining lots were sold with that object, present owners having improved and erected thereon permanent and elegant buildings, it is not competent for the party making such a dedication to revoke it and reassert any right over the land; at all events, so long as it remains in public nse.
      •Also in Grinnell v. Kirtland, 2 Abb. N. C. 386; 6 Daly, 359 (1876), as one of the numerous cases relied upon to sustain the proposition “that where an owner of city property sells it in lots or parcels bounded on a street, whether opened or designed, and by reference to a map made and filed; such act alone constitutes a dedication of the land included in the proposed street.” But distinguished as being also a case where the question of acceptance was not in dispute.
      Grinnell v. Kirkland was affirmed, it seems, in 68 N. Y. 629, but no opinion.
      And in People v. Lambier, 5 Den. 19 (1847), to the effect tnat if a proprietor of lands through which such mapped streets run, sells and conveys lots in reference to such map, recognizing by the boundaries of the lands granted, the existence of such mapped streets, such an act is a dedication of the designated street to the public use, to be opened whenever the municipal authorities think proper, without payment to the proprietor of anything more than a nominal compensation.
      See also the matter of John and Cherry streets, 19 Wend. 675 (1839), and cases cited, with reference to a statute giving a fee to the corporation in trust for the public use.
     
      
       Reported in Hills v. Miller, 3 Paige, 254.
     
      
       Reported in 4 Paige, 510.
      In Matter of Thirty-second street, 19 Wend. 128, 130 (1838), the case of the Trustees of Watertown v. Cowen is said to proceed on the ground of an implied grant of a right of way, or a dedication of the land to public use.
      In Pearsall v. Post, 20 Wend. 111, 117 (1838), the court say that in Trustees of Watertown v. Cowen, the chancellor has extended and applied the doctrine of prescriptive right in a public highway to a village square, laid out by the original proprietor.
      In Post v. Pearsall, 22 Wend. 425, 435 (1839), it is relied on, holding that where the owner of land has laid out village lots intersected with roads and public squares, it has been repeatedly held, and very justly, by various judicial tribunals, that such roads and public squares are dedicated to public use.
      It is cited in Allen v. Culver, 3 Den. 284, 295 (1846), and (in 1853) Denman v. Prince, 40 Barb. 213, 216 (1862); Van Rensselaer v. Read, 26 N. Y. 558, 575 (1863); Wood v. Seely, 32 Id. 105, 117 (1865); Tyler v. Heidorn, 46 Barb. 439, 452 (1866); Weyman’s Ex’rs. v. Ringold, 1 Brad. 40, 55 (1849); Child v. Chappell, 9 N. Y. 246, 255; to the effect that such a covenant runs with the estate in the land. But on this point compare Blain v. Taylor, 19 Abb. Pr. 228, 230.
      In Seymour v. McDonald, 4 Sandf. Ch. 502, 508 (1847), it was cited as authority for saying, that “ The jurisdiction of the court to enforce such a covenant is unquestionable.” To same effect, Wheeler v. Gilsey, 35 How. Pr. 139, 147; Trustees, &c. v. Lynch, 70 N. Y. 440, 452.
      In Lawrence v. Mayor, &c. of N. Y., 2 Barb. 577, 580 (1848), it is relied on as an authority in point, that courts have often interfered to restrain not only individuals, but corporations, also, from restricting adjoining lot owners in their full enjoyment of their easement in the street.
      In Anderson v. Rochester, Lockport & Niagara Falls R. R. Co., 9 How. 553, 559 (1854), the court examined the question of dedication, and says: “ The naked fee of the land remains in the original proprietors, and the public acquire an easement merely, co-extensive with the purposes to which such open squares in populous towns are usually appropriated; and where there is a corporation to represent the public, and take charge of its interests, the easement vests in such corporation, which thus becomes the trustee of a use. In all this the author.ties concur; for, although it was said by the chancellor in the case of the Trustees of Watertown v. Cowen (4 Paige, 510), that the supreme court of the United States had held, in the City of Cincinnati v. Lessees of White (6 Pet. 431), that the legal tille to the land thus dedicated vests in the corporation, yet a careful examination of the latter ease will show that no such doctrine is advanced in it. On the contrary, the case of Lade v. Shepard (3 Stra. 1004), is cited and relied upon, which expressly holds that in cases of dedications to a public use, the fee of the land remains in the original proprietor; and that caséis said to prove, ‘that it is not necessary that the fee of the land should pass in order to secure the easement to the public.’ This is the established doctrine in relation to lands dedicated to public use as highways and streets.”
      In Brouwer v. Jones, 23 Barb. 153, 161 (1856), it was cited as again re-asserting the principle (applied in a former case, 3 Paige, 254), “ that a covenant or agreement by the grantors of lands with their grantee, then the owner of adjacent lots, not to build on a certain, piece of ground, should be enforced by injunction in favor of asubsequent purchaser of these adjacent lands, and that notwithstanding the grantors with whom the agreement or covenant was made had released it to the purchasers.”
      In Mayor, &c. of New York v. Stuyvesant, 17 N. Y. 34, 43 (1858), the grounds of the decision in Trustees of Watertown v. Cowen were explained by saying that, “ the corporation was about to proceed to a large expenditure of public money in a matter of public interest, and where it rightfully represen!cd the public interest (Watertown v. Cowen, 4 Paige, 510), and the Stuyvesant heirs were in possession, claiming that the right to open the square was at an end, and a resort to the equitable powers of the court seems to have been requisite to a complete and satisfactory disposition of the controversy.”
      In Perkins v. Perkins, 44 Barb. 134, 136 (1865), it was cited in support of the doctrine that commons, such as we find in many of our villages, on which people indiscriminately walk and drive teams and cattle without being trespassers, are dedicated to public uses, and the original proprietors can never appropriate them exclusively to any private use.
      In Burnet v. Bagg, 67 Barb. 154, 164 (1867), it was cited in support of the following: “The triangle in question was dedicated to the public for the purposes of a park or square, and the city of Syracuse, if it accepted the dedication, became seized of it, not in fee, but in trust for the public, charged with the duty of preventing its appropviation to any other uses than such as the donors intended, and of securing to the public the enjoyment of the benefits which it was designed to confer.” -
      In Wiggins v. McCleary, 49 N. Y. 346, 348 (1872), it was relied un in support of the statement that, “it is well settled that where the owner of a tract of land lays it out into lots, and intersects it with a street or alley, obviously for the convenience of the lots, and purchases are made in reference to such convenience, and conveyances are given bounding lots, there is created in the owners an easement in the street or way which cannot be recalled.”
      In Taylor v. Hopper, 62 N. Y. 649, 650 (1875), it was cited in support of tuc case therein hand, to the effect that parties buying laird with reference to a map made by the grantor, giving the numbers of the lots, mentioning the street, and the deed by its terms conveying to the center thereof, have a right of way over the same, and, as between the parties, the grantor dedicated it as a street, even if it did not appear that the public authorities had ever accepted it as a public way.
      In Norman v. Wells, 17 Wend. 136, 151 (1837), the court, say of it: “ A. case recently decided by Chancellor Walworth, though he did not, stop to consider the authorities, fully accords with these decisions [cited], and indeed comes so near the case at bar, that it is impossible to see any difference. . . . This case is the stronger as standing upon the abstract nature of the covenant at common law. It was not within the statute, for it did not concern landlord and tenant. It was a case of forbearance off the demised premises, and yet, being annexed by the covenant, that made a case of privity according to Bally v. Wells.”
      In Schermerhorn v. Mayor, &c. of N. Y., 3 Edw. Ch. 119, 123 (1837), the case presented was distinguished from that of Watertown thus: “ The bill claims that there has been a dedication to the public use as an open -space, at least, if not as a public street, and the complainants insist on being protected in the enjoyment of it as such open space, whatever may be the title of the corporation to the land ; and the cases [citing them] and of others of that class are relied on for the principle to support the position. But there are not facts enough in .the present case to warrant the application of the principle in those cases.”
     
      
       Phoenix Ins. Co. v. Continental Ins. Co., reported in 87 N. Y. 400. The decision below is in 14 Abb. Pr. N. S. 266.
     
      
       Arnold v. Hudson Riv. R. R. Co., reported in 55 N. Y. 661. The decision below, here reversed, is in 49 Barb. 108.
     
      
       Reported also in 21 Am. R. 629. The decision below, which was reversed by the court of appeals, is in 39 Super. Ct. (J. & S.) 421.
      Compare Shipman v. Beers, 2 Abb. N. C. 435; Lattimer v. Livermore, 72 N. Y. 174; modifying Lottimer v. Livermore, 6 Daly, 501; Parsons v. Johnson, 68 N. Y. 62; S. C., 23 Am. R. 149. In Spies v. Damm, 54 How. Pr. 293, 294 (1877), Doyle v. Lord is cited as a decision which “ establishes that under a conveyance of premises everything passes, as an incident, which belongs to, and is in use for, them; and that, if such an incident consists of an arrangement upon the continuance of which the enjoyment of light and air depends, it is to be protected by the law like other property. But no light or air-can, of itself, be deemed an incident as against an adjoining owner, unless it descends perpendicularly upon the premises demised or part thereof, or their appurtenances.”
     
      
       Sixth Ave. R. R. Co. v. Kerr, 72 N. Y. 330, was cited in Matter of Lockport & Buffalo R. R. Co., 19 Hun 38, 43 (1873), as au authority for the right of one read to oumpensatiuu for crossing by another.
     
      
       People v. Kerr, 27 N. Y. 188, was cited in Trenor v. Jackson, 15 Abb. Pr. N. S. 115 (1874), where the court held that in the case of lands appropriated by the city authorities under the act of 1813, “the grant is expressly upon trust for a public purpose, that the lands may be appropriated and used forever as public streets. . . . The city has neither the right nor the power to apply any such property to other than public uses, and those included within the objects of the grant.”
      In Calkins v. Bloomfield & Rochester Natural Gas Light Co., 1 Sup’m. Ct. (T. & C.) 541, 548 (1873), it was recognized as authority for the following: “ll has been decided that in cities and incorporated villages, the streets may be used for the purpose of laying therein railroad, gas and water pipíes, and for making drains and sewers, without making any compensation therefor to the owner of the soil.”
      In Bloomfield, &c., Gas Light Co. v. Calkins, 62 N. Y. 386, 390 (1875), the court say: “ We have bcen referred to the dicta of judges in several cases,holding that the streets of cities may be used for the laying down of ordinary gas and water ¡upes, and the construction of sewers, ■without the consent of the owner of the fee. There is no case where the precise point has been distinctly presented and passed upon, but the opinions of judges contain remarks which sustain this doctrine. Tile views thus taken are net without some reason to support them, where, as in People v. Kerr (27 N. Y. 188), the fee of the land had been acquired by the city. . . . Concede, then, that these improvements were proper for cities, it by no means follows that the appellant had a right to use the highway in question for the same purpose. . . . It is enough to say that the rule claimed lias no application to a country highway, because the circumstances are entirely different.”
      The decision in the case in the text explaining the limits of the rule in People v. Kerr (27 N. Y. 188), limits also to a greater or less extent the general expressions as to that rule in the following cases other than those cited in the text: Milhau v. Sharp, 27 N. Y. 193, 622; Kelsey v. King, 33 How. 39, 46; Baldwin v. Mayor, &c. of N. Y., 2 Keyes, 387, 417; N. Y. & Harlem R. R. Co. v. Forty-second & Grand street Ferry R. R. Co., 32 How. 481, 497; Knox v. Mayor, &c. of N. Y., 38 How. 67, 72; Metropolitan Board of Health v. Heister, 37 N. Y. 661, 672; Craig v. Rochester City & Brighuon R. R. Co., 39 Id. 404, 412; Coster v. Mayor, &c. of Albany, 43 id. 399, 414; Matter of Boston v. Albany R. R. Co., 50 N. Y. 574, 577; Tompkins v. Hodgson, 2 Hun, 146, 148; S. C., 4 Sup'm. Ct. (T. & C.) 435, 438; Wallack v. Mayor, &c., of N. Y., 3 Hun, 97, 104; Fearing v. Irwin, 55 N. Y. 486, 490; People ex rel. N. Y. & Harlem R. R. Co. v. Havemeyer, 16 Abb. Pr. N. S. 219; S. C., 4 Sup'm. Ct. (T. & C.) 365; Haight v. New York Elevated R. R. Co., 49 How. 20, 21; Matter of Main & Hamburgh St. Canal, 50 How. 70, 73; Matter of N. Y. Elevated Railway Co., 7 Hun, 239, 241; Matter of City of Buffalo, 68 N. Y. 167, 171; Washington Cemetery v. P. P. & C. I. R. R. Co., Id. 591, 593; Sixth Ave. R. R. Co. v. Gilbert Elevated R. R. Co., 43 Super. Ct. 292, 318. See also New York & Harlem R. R. Co. v. Forty-second street & Grand street Ferry R. R. Co., 26 How. Pr. 68. 70. Cited in Dry Dock R. R. Co. v. New York & Harlem R. R. Co., 30 How. Pr. 39, 46 (Reversed in 33 How. Pr. 193, and in 54 Barb. 388).
     
      
       Heyward v. Mayor, &c. of N. Y., 7 N. Y. 314, was cited in Washington Cemetery v. Prospect Park, &c. R. R. Co., 4 Abb. N. C. 15, 18 (1877), on this point, the court saying: “That the construction of an avenue leading to a great city was likely to involve a permanent use of the land appropriated; and it might be proper, as it certainly would be competent, for the legislature to declare that the fee should be taken, on providing just compensation to the owner.”
      In Gillespie v. Broas, 33 Barb. 370, 376 (1856), the court say the words “a good unincumbered title,” in the 18th section of the act erecting the county of Schuyler, mean a title in fee simple absolute, free and clear from any legal exception or charge thereon. . . A “title” is, by the section, to be made to the county, and a title, without any qualifying words, includes the entire estate in the premises. . . . And there is nothing in the act indicating that any different estate was intended by the legislature.”
      In Heath v. Barmore, 50 N. Y. 308 (1872), the court said: “ The price paid by the plank-road company must be deemed to be the consideration for the entire fee,and he (the plaintiff) consequently retained no property therein which would preclude the State, with the consent of the plank-road company, from devoting the laud to other public uses, though they should impose greater burdens upon it than a plank-road, or even declaring by law that a surrender of any part of the road by the company, in the form prescribed by the act, should operate to transfer the title of the company to the town.”
      In Washington Cemetery v. Prospect Park, &c. R. R. Co., 7 Hun, 655, 657 (1876), the court say: “A fee may be taken for a public market when the act authorizes it, and the municipality may- sell the land after the use ceases.” And on appeal, 68 N. Y. 591, 594 (1877), it is said: 1 ‘ The construction of an avenue leading to a great city was likely to involve a permanent use of the land appropriated, and it might be proper, as it certainly would be competent, for the legislature to declare that the fee should be taken, ou providing just compensation to the owner.” Heyward v. Mayor, &c. of N. Y., 7 N. Y. 314. “But in construing the act of 1873, we are to bear in mind that the State, when taking private property for public use, has a right to prescribe the extent of its interference with private property, and acts independently and without the consent of its owner; and no implication ought to be indulged that a greater interest or estate is taken than is absolutely necessary to satisfy the language and object of the statute making the appropriation.”
      In Sweet v. Buffalo, N. Y. & Phil. R. R. Co., 79 N. Y. 393, 300 (1879). the court say: “The use was unquestionably a public one, and it is well settled, that it is within the competency of the legisla- * ture, in authorizing lands to be condemned for a public use which may be permanent, to determine what estate shall be taken, and to authorize the taking of a fee or any lesser estate in its discretion, and that a fee may be taken, although the public use for which the land is to be taken is special and is not of necessity permanent or perpetual.” See also Watson v. N. Y. Central R. R. Co., 6 Abb. Pr. N. S. 97 (1868).
     
      
       In Bartow v. Draper, 5 Duer, 130, 148 (1855), the court quote Barclay v. Howell, 6 Pet. 499, to the point that if laud had been dedicated for a particular purpose, and the city authorities had app: opriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery to compel a specific execution of the' trust, by restraining the corporation, or by the removal of obstruetious,—and say: “But even' in sucli a case the property dedicated would not revert to the original owner. The use would still remain in the public, limited only by the conditions imposed in the grant.”
      In Rexford v. Knight, 11 N. Y. 308, 315 (1854), the judge, citing Heyward v. Mayor, &c., says: “As to the quantity of estate acquired by the State, I entertain no doubt but it is a fee simple. The language employed is so broad as to require a fee simple. The lands are to be deemed the property of the State, and that excludes the idea that any one else is to retain a property in them. That under such a state of the title, the lands would not revert upon the abandonment of their use for the purpose of a canal, and that such a title might be acquired under the right of eminent domain, notwithstanding the possibility that the lands might cease to be used for the purpose to which they were originally taken, was held in Heyward v. Mayor, &c. of N. Y., 7 N. Y. 314.”
      In Gearty v. Mayor, &c. of N. Y., 49 How. Pr. 33, 34 (1875), the court say: ‘ ‘ Having paid the full value for the property to the owners, there can be no valid reason assigned why the corporation should not sell and dispose of the same when the use to which it was devoted should terminate, or when it should cease to be reserved for public use.”
      In Matter of Ninth Avenue and Fifteenth Street, 45 N. Y. 729, 732, the court say : “By the acts of the legislature, under which the lunds included in Prospect Park were acquired by the city of Brooklyn, the city became the owner of such lands in fee, to be held by it for the purposes of a public work. The city cannot dispose of, or use the lands for any other purpose, without the sanction of the legislature; but with such sanction, the city may dispose of or use them in any way it may deem proper.” To similar effect is Matter of New York & B. B. R. R. Co., 20 Hun, 206.
      As to what language will sustain the claim that the fee was taken, see Washington Cemetery v. Prospect, &c. R. R. Co., 4 Abb. N. C. 15, 20 (1877); S. C., 68 N. Y. 59; where it is said that “it is not necessary that exact or technical language should be used in a statute for taking private property for public use in order to vest the fee in the public; but it must clearly appear before this effect can be given to a statute, that it was the intention of the legislature, disclosed by the act itself, to take a fee. If any remaining private ownership is inconsistent with the use for which the land is taken, and compensation is made for the fee, and the provisions of the act cannot be carried out unless a fee is taken, a fee will be deemed to be taken, in the absence of express words; and this is, we think, as far as any of the cases have gone in holding that a fee in such cases may pass by implication.”
      See also Buffalo Pipe Line Co. v. N. Y., L. E. & W. R. R. Co., 10 Abb. N. C. 107; Kenney v. Wallace, 24 Hun, 478.
     
      
      Kellinger v. Forty-second St. & Grand St. R. R. Co., 50 N. Y. 206 (1873), wns cited in Prime v. Twenty-third St. R. R. Co., 1 Abb. N. C. 63, 65, in a case of injunction against throwing snow from a horse railroad track; where the court say: “This exclusion of the public from the use of the strip of the public street, as described, is a public-nuisance, unless the defendant has a right to do what has resulted in the exclusion. If the acts of the defendant are lawful, the inconvenience and damage suffered from them by the public or the plaintiff do not make the acts wrongful. If the acts of the defendant are unlawful, damage from them gives a cause of action.”
     
      
       For other cases in which Williams v. N. Y. Central R. R. Co., has been followed, see Kelsey v. King, 11 Abb. Pr. 180, 183 (1860), Robinson v. New York & Erie R. R. Co., 27 Barb. 512, 521; Kelsey v. King, 32 Barb. 410, 415; People v. Law, 34 Barb. 494, 501; Mahon v. New York C. R. R. Co., 24 N. Y. 658, 661; Mason v. Brooklyn City & Newtown R. R. Co., 35 Barb. 373, 376; Van Amringe v. Barnett, 8 Bos. 357, 372; Craig v. Rochester City & Brighton R. R. Co., 39 Barb. 494; Wager v. Troy Union R. R. Co., 25 N. Y. 526, 532; Milhan v. Sharp, 27 N. Y. 611, 625; Kelsey v. King, 33 How. 39, 44; Heath v. Barman, 49 Barb. 496, 498; Knox v. Mayor, &c. of N. Y., 55 Barb. 404, 411; Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404, 407; People ex rel. Dunkirk, &c. R. R. Co. v. Cassity, 2 Lans. 296; affirmed, 46 N. Y. 46, 49; Hutchins v. Smith, 63 Barb. 251, 253; People ex rel. Williams v. Hines, 49 N. Y. 587, 590; Calkins v. Bloomfield & Rochester Natural Gas Light Co., 1 T. & C. 541, 548; Bloomfield Gas Light Co. v. Calkins, 62 N. Y. 386, 389; Matter of N. Y. Elevated R. Co., 7 Hun, 240; Washington Cemetery v. P. P. & C. I. R. R. Co., 7 Hun, 655, 656; White’s Bank of Buffalo v. Nichols, 64 N. Y. 65, 75; Washington Cemetery v. P. P. & C. R. R. Co., 4 Abb. N. C. 15, 22; S. C., 68 N. Y. 591, 597; Patten v. New York Elevated R. R. Co., 3 Abb. N. C. 306, 314, 345; Matter of New York C. & H. R. R. R. Co., 15 Hun, 63, 66; New York & Harlem R. R. Co. v. Mayor, &c. of N. Y., 1 Hilt. 562, 585; Brooklyn Central & Jamaica R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. 420, 422.
     
      
      That case is supported by the subsequent decision in Yates v. Milwaukee, 10 Wall. 504 (1870), where the same court say: “ The defendants, in support of their right to remove the wharf, seem to rely—1st, upon the want of title of the plaintiff to the locus in quo. ... As to the first of these propositions, it does not seem to be necessary to decide whether the title of the lot extends to the thread of the channel of the river, though if the soil was originally part of the public land of the United States, as seems probable, the case of Railroad Co. v. Schurmier would limit the title to the margin of the stream. But whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules or regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be. This proposition has been decided by this court in the cases of Dutton v. Strong, 1 Black, 25, and Railroad Co. v. Schurmeir, 7 Wall. 272.” See also Messenger v. Mason, 10 Wall. 506.
      In Atlee v. Packet Co., 21 Wall. 392 (1874), Railroad Company v. Schurmier was referred to by Justice Miller as having been cited by the judge of the district court below in support of the proposition that the appellant, an owner of saw-mills, &c., as a riparian proprietor, had a right to erect the pier, boom, &c. But Justice Miller held otherwise, thinking it to have been built withóut authority of law, and that he was responsible in damages for the loss of the barge, &c. He said, “We do not consider the case before usas falling within the principles on which that class of cases has been decided.”
     
      
       The distinction between the remedy by injunction and by damages is also illustrated in the case of Trustees of Columbia College v. Thatcher, 10 Abb. N. C. 235.
     