Boston & Albany Railroad v. President & Trustees of Greenbush, 5 Lans. 461

Boston & Albany Railroad v. President & Trustees of Greenbush

5 Lans. 461 | N.Y. Sup. Ct. | 1872

Potter, J.

There is no conflict of facts in this case, though it is necessary to state certain facts, in order to make the proper application of the law arising thereon. The plaintiffs, it is conceded, are a corporation, and are the successors *464of the Albany and West Stockbridge Railroad Company, and entitled to all the rights, property and estate of the last named corporation, which in 1841 acquired, by conveyances in fee, by purchase (and not by appraisal under the statute), the lands upon which their railroad tracks, seven in number, are laid, in the village of Greenbush, and over which the defendants were proceeding to lay out and work a public highway in said village called Herrick street; and from doing which, the defendants were restrained by injunction by the plaintiffs.

This really presents but one question to be decided, to wit, the constitutionality of two acts of the legislature; one the act of 1854, chapter 383, entitled “An act revising, amending and consolidating the several acts in relation to the village of Greenbush,” which declared, among other things, that certain streets designated on a certain map (including Herrick street) to be streets, roads and alleys of said village; the other, being the act of 1853, chapter 62, entitled “ An act to regulate the construction of roads and streets across railroad tracts.” Under the first mentioned act it was claimed that the street in question became a street by virtue of its being so recognized in the statute, and not otherwise. It had never been surveyed, opened or graded over the plaintiffs’ lands, or any official act done by the trustees of the village to that end, until March, 1870. Ho damages had ever been paid the plaintiff for taking the property for a street, or any assessment made in respect thereto. Under the second mentioned act, the right to take the property without making compensation to the railroad company was given, by virtue of the express language of the act to that effect. (Act of 1853, chap. 62, § 1.)

The plaintiffs claim that both these acts are infractions of the provision of the Constitution, that private property shall not be taken for public use without just compensation. The property in question was clearly private property ; it was held in fee under purchase and conveyance by deed absolute, and the plaintiffs were such owners prior, in point of time, to the *465passage of either of the two acts in question. And it had been held in the Court of Appeals, in the case of Nicoll v. The N. Y. and Erie R. R. Co. (12 N. Y., 121, 127, etc.), per Parker, J., “ that a raih'oad company had ample power to purchase lands. It was an incident at common law to all corporations, unless they are specially restrained by their charters, or by statute.” And by an express provision of the Revised Statutes it is declared that every grant of real estate shall pass all the estate or interest of the grantor, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of the grant. (1 Rev. Stat., 748, § 1.) From this view it might well be ’ argued that, the plaintiffs’ grantors having parted with all their estate, the whole title remained in the plaintiffs; that they being competent to hold and convey the estate, it was their private property, and that it was protected by the Constitution from being taken for public purposes, even by an act of the legislature, without giving them a just compensation therefor.

But this question has received judicial construction by the Court of Appeals, whose opinions and adjudications are binding upon us, and it becomes us to follow this authority. The right to hold lands by railroad corporations in this State is not an unqualified right, but is limited by express provision of tire statute; and its title is declared to be for the uses of its incorporation, and to he held for the purposes of the grant. The power conferred upon the plaintiffs to hold land was by legislative grant of power to them as a corporation ; and the legislature, in the grant, reserved the right to alter, modify or repeal the charter ; and by the fiftieth section of the act of 1850, chapter 140, page 235, all existing railroad companies in this State were declared to be formed subject to the provisions of that act, one of which was, in section 18, that all real estate acquired by any company for the purposes of its incorporation should be deemed to be acquired for public use.

Under this view of the qualified title of railroad corporations to such lands, and the reserved power of the legislature *466to modify and alter their charters, it has been held that the statutes in question, and similar acts of the legislature, authorizing the construction of highways across railroad tracks without compensation, does not violate the constitutional provision against taking such private property for public use, or impair the obligation of contracts. (The Albany Northern Railroad Co. v. Brownell, 24 N. Y., 345 ; Matter of Kerr ; 42 Barb., 119-121; Sixth Avenue R. R. Co. v. Kerr, 45 Barb., 138.) These authorities seem to be in point and must control our decision. The result is, the judgment must be affirmed, with costs.

Judgment affirmed.