
    The City of Albany v. The Watervliet Turnpike and Railroad Company.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July, 1887.)
    
    1. Highway—Condemnation of private lands for uses of—When in ACCORDANCE WITH LAW—Laws 1870, OH. 139, § 5—Laws 1883, CH. 298, tit. 17, § 1.
    The defendant company had rights absolute or qualified in a strip of land taken for the extension of a street; this strip came within the territorial limits of the city of Albany by the annexation of territory to the city. Laws 1870, chapter 139, section 5, authorized the annexation of the territory, and thereafter the annexed territory, with its freeholders and inhabitants, were, for all purposes provided for by the city charter, subject to the control and government of the city with some few exceptions. The city charter, Laws 1883, chapter 298, title 17, section 1, conferred upon the common council authority to take within the city any ground or real estate, with the appurtenances, * * * for the purpose of laying out, opening, extending, etc., any street, road or avenue, and subsequent sections provided for an assessment and payment of damages occasioned thereby. Held, that the taking of the strip in which the company had rights for the purpose of a public street was in accordance with legal authority.
    
      2. Same—Damages—What conclusive as to amount of.
    
      Held, that the extension of the street being duly made and proceedings being had in due form for ascertaining the damages caused by it to the parties interested, of which the company had notice and in which they participated; the subject of the adequacy or inadequacy of the damages was foreclosed in that proceeding and that the parties were concluded by the award so long as it stood unreversed.
    3. Same—Control of.
    
      Held, that the extension of the street having become a public street of the city, its use became a matter of regulation by the common council, and that that body might control the position of defendant’s tracks along its surface.
    D. Cady Herrick, for pl’ff; Hale, Cowen & Bulkley, for def’t.
   Bockes, J.

That the defendant’s company had rights, absolute or qualified in the strip of land taken for the extension of Broadway, which strip came within the territorial limits of the city by the annexation of territory to the city, is undeniable. The first question, then, is whether the taking of the strip in which the company had rights, for the purpose of a public street, was in accordance with legal authority. This question seems well answered in the affirmative by the facts stated in the submission laid before the court as the basis for its decision. The act of 1870, chapter 139, authorized the annexation, and thereafter the annexed territory, with its freeholders and inhabitants was, for all purposes provided for by the city charter, subject to the control and government of the city, with some few exceptions, here unnecessary to be noticed. Section 5. Its charter conferred authority upon the common council “to take within the city any ground or real estate, with the appurtenances, * * *” for the purpose of laying out, opening, extending, etc., * * * any street, road or avenue (1883, chap-. 298, tit. 17, § 1), and*to meet the constitutional requirement as to compensation, provision was made for an assessment and payment of damages occasioned thereby. See subsequent sections. The extension of Broadway was duly made and proceedings were had in due form for ascertaining the damages caused by it to the parties interested, of which proceedings the company had. notice, and in point of fact participated therein.

Its damages were assessed in accordance with all legal requirements, and the sum awarded to the company for its damages was paid over to and was accepted by it. It matters not here that it was small in amount, inasmuch as it was ascertained and entered of record in all respects according to law. The subject of its adequacy or inadequacy was foreclosed in that proceeding. So long as the award, whatever was its amount, remained undisturbed by reversal or otherwise, the parties were concluded by it; certainly so as to mere errors not affecting jurisdiction, such as errors in admitting or excluding evidence on the hearing before the officer appointed to inquire into and certify the damages, or in the sum or sums awarded by them. But it is insisted on the part of the company that the proceedings to extend Broadway and to provide for the assessment and payment to the parties interested in the land taken for that purpose, of damages occasioned thereby, were ineffectual to take away or impair the vested rights of the company, or such rights as were especially and expressly granted to it by the act of 1862, chapter 233, one of which was the right to construct and maintain one or more railroad tracks and ways, with all necessary turnouts, branches and switches upon the bed or one or both sides of their present turnpike road. Section 1. We conclude otherwise. Authority was conferred upon the common council to take the ground for the purpose of a public street, that is, to make it useful as such to the public, to answer the necessities and conveniences of public travel with vehicles, etc.

So it was provided that ’'‘upon payment or deposit of the sum to be paid as compensation, the city of Albany shall be entitled to enter upon and be seized of the fee of the real estate so taken as aforesaid, for public use.” Title 11, § 8, chap. 298 of 1883.

Thus other rights were subordinated to such as were necessary and appropriate to the public use of the land for general public travel, and compensation was provided for to answer all damages necessarily resulting to those interested in such land, injured by its appropriation to public use as a street. This was not the taking away, absolutely, of land already appropriated to public use.

As regards the rights of the company, it but regulated, or gave to the city the power to regulate its use as between the company and the city, and provision was made for compensation for the injury growing out of the interference with the company’s rights authorized by the act. The land was appropriated to use as a public street, with all the necessary incidents to secure such convenient use, and it must follow that the ordinary powers of government brought into exercise to secure that end will attach; those powers are such as pertain to the city officer or branch of the city government having the public streets of the city in charge; and so it is declared in the city charter that the common council shall be commissioners of highways in and for the city, with power to regulate the use of the streets, highways, roads and public places by foot passengers, vehicles, railways and locomotives. Title 3, § 14.

The extension of Broadway having become a public street of the city, its use became a matter of regulation by the common council, hence that body might control the position of the defendant’s tracks along its surface. If the above suggestions and conclusion be sound, the ordinance here brought in question is well supported by ample, authority.

Judgment must go for the city on the case submitted, with costs. If counsel shall be unable to agree upon the judgment to be entered, it will be settled on notice by one of the justices of the court.

Present: Learned, P. J.; Land on and Bockes, JJ.  