14 N.Y.S. 296 | The Superior Court of the City of New York and Buffalo | 1891
Prior to the 1875 the city of New York had under certain condemnation proceedings instituted under the act of 1813, the fee'of Third avenue, which it held in trust for use as a public street. As a municipal corporation the city of Hew York also owned in fee the. property -abutting on the westerly side of Third avenue, between Sixty-Seventh and
The city of New York, as a municipal corporation, held all of the property which it owned for public use. It held the fee of the street for a specific public use, viz., that of a public street; and it had no authority, except by consent of the legislature, to appropriate any of the property held in trust to be used as a street for any purpose except a street use, but all the property that was vested in the corporation was corporate property, and could not be applied to any use except corporate use without the consent of the legislature. The legislature, however, had power to authorize the municipal authorities to consent to the use of its property for any public use, and for such purpose it had power to declare what should be a public use. It had power, therefore, to declare that the elevated railroad should be deemed a public use, and to authorize the corporate authorities to devote any of the property that it held, whether in trust for public streets or for the general municipal purposes, to the use of such railroad, and when, acting under such authority, the corporation granted the right to use any of its property for the construction of such railroad, and the railroad company acted upon such consent, and built its road, the right to use such property so devoted for the railroad vested absolutely and irrevocably in the railroad corporation, and neither the city nor the legislature could subsequently resume possession of such railroad property without the consent of such railroad corporation. Thus, in the case of People v. O'Brien, 111 N. Y. 38, 18 N. E. Rep. 692, Ruger, C. J., says: “The