12 N.Y.S. 466 | N.Y. Sup. Ct. | 1890
In 1867 the legislature passed an act to authorize the towns of Morrisania and West Farms to widen, make, extend, and improve a highway in said towns to be called the “Southern Boulevard,” and by the act commissioners were appointed with power to perform the several acts and duties therein prescribed. Among other things it was provided in said actas follows: “Sec. 24. Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard, and, except for the purposes of crossing the same, no railway or tramway shall be laid or constructed thereon, or upon any part thereof, by any persons or corporations whatsoever, without a special act of the legislature of the state for that purpose first had and obtained; and, in case the legislature of the state shall at any future time grant to any person or corporation the right to construct any rail or tram way upon said road or any part thereof, nothing in this act contained shall be construed to affect or cut'off the rights of the several owners of land, which shall be taken for laying out the road hereby authorized, to-claim and recover from such person or corporation the full value of all the land taken from such owner or owners for the road hereby authorized to be constructed, to the same extent as if no such road had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from the construction of such rail or tram way.” The proposed boulevard was laid out pursuant to the authority of that act, and commissioners of estimate and assessment were appointed for the assessment of damage and benefit, whose report was duly confirmed, and the said boulevard duly opened. In the year 1887 the legislature amended the act of 1867, by making section 24 of that act read as follows: “Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard, and no railroad of tramway shall be laid or constructed thereon, except by a railway company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter two hundred and fifty-two of the Laws of eighteen hundred and eighty-four, and which has heretofore complied or shall comply with all the provisions of said chapter in respect of the consent of owners of property and the local authorities.”
The Southern Boulevard Railroad Company, organized under the said act of 1884, began these proceedings to acquire the right to lay and operate its road upon the said boulevard. Commissioners were appointed, who made simply a nominal award; apparently having based their award upon the provisions of section 24 as amended in 1887, and not as originally enacted. From this award, the appellants, who were owners of property taken for the opening of the boulevard, appeal; and the question presented seems to be whether the legislature, after having authorized the taking for public use of property upon certain conditions, can abolish those conditions and treat the property as though in the first proceeding no conditions whatever had been attached to its condemnation. We think that this cannot be done. The provisions for the protection of the owners of property taken or assessed for the opening of the boulevard constituted a contract between such owners and the people of the state of Hew York, which the legislature had no power by its subsequent action to impair. Undoubtedly the awards made as compensation for the property taken were affected by the provisions contained in the act of 1867, whereby, in case (as had frequently been done) the street was to be prostituted to the uses of a private corporation, the owners should receive