Having carefully examined the case, I shall content myself with stating, without elaboration, the conclusions reached:
1. The authority conferred on the defendants, by the act of April 9, 1860, to construct, operate and use a railroad for the conveyance of passengers for compensation, through, upon and along certain streets and avenues, in the city of New York, was not an invalid exercise of legislative power, in the absence of any constitutional inhibition or restraint. The legislature has entire control of any public rights in the highways, or streets, and what it authorizes, so that it be constitutional, cannot be complained of by the attorney-general or any one else.
2. The act referred to authorizes the defendants to construct and use a railroad track, but makes no provision for compensation to the corporation of the city of New York, or to the owners of lots fronting on the streets to be traversed by the track. Because the act does not provide for compensation either to the corporation or the adjacent land owners, but the defendants are empowered to use the streets for the transportation of passengers in carriages run on iron rails, without making compensation to any one, it is insisted, that the constitutional inhibition, which forbids the taking of private property for public use, "without just compensation" applies to the case. Conceding, however, that the laying down of iron rails, in the public streets, without any change of grade, and running carriages thereon by horse power, for the use and accommodation of city passengers, is a material enlargement and change of the nature of the peculiar public easement and a taking of the property of the owner of the soil of the street, within the meaning of the constitutional provision, it is necessary, before the validity of the act can be questioned by the attorney-general *Page 210 or the other plaintiffs in the action, that the rights of the latter, or of the municipal corporation should be those of absolute owners of the fee of the land embraced within the street. Indeed, if the city corporation own the streets, in the same manner, and to the same extent as an individual does his lands, and its property in them is of such a character as to be protected by the constitutional limitation upon the right of eminent domain, the action cannot be sustained. The corporation is made a defendant, upon the allegation that it is about to consent to the construction of the railroad track by Kerr and his associates. If it owns the streets — if the absolute fee be in the corporation — and it assents to the additional burden, it removes any constitutional objection to the law. The attorney-general certainly could not be heard to maintain that that was a public nuisance, which is authorized by a constitutional act of the legislature.
3. The plaintiffs, other than the people, have no property, estate or interest, in the land forming the bed of the streets in front of their respective premises, to be protected by the constitutional limitation upon the right of eminent domain. The streets in question were voluntarily or compulsorily, and upon due compensation made therefor, transferred from the individual proprietors to the corporation in fee according to § 178 of the act of 1813, relating to the city. (2 R.L., 409 to 416.) It is found as a fact, and conceded, that under this act of 1813, all the lands in the several streets on which the plaintiffs are abutting land owners, were either taken for streets under § 178 of that act, after compulsory appraisal, or ceded by the lot owners upon an agreed valuation, pursuant to such section. Unlike our highway acts, which condemned to public use a mere easement only (2 R.L., 275), this statute provided for the "relinquishment of the lands and premises" constituting such streets, by the original proprietors, and that upon the final confirmation by the Supreme Court, of the report of the commissioners of estimate and assessment, the corporation should become and be seised in fee of said lands and premises. After such relinquishment and vesting of the fee in the city corporation, *Page 211 no property, estate, or interest in the land included in the streets, opened under the act, remained in the adjacent proprietors. The possibility that the public use for which the land was taken might cease, is not, I think, to be deemed as leaving in the persons from whom it was taken, a right to have the lands again in that event. (Heyward v. The Mayor, c., ofNew York, 3 Seld., 314.) An interest, though technically vested, which is so limited as to be subsequent in point of enjoyment to a prior present ownership that may last forever, is not to be regarded as property, or entitled as such to immunity from destruction at the will of the government. If, however, it was conceded, that those from whom the land was taken have some remote reversionary right, in case the streets shall cease to be used as highways, the possibility of reverter is too remote and contingent to be of any appreciable value.
4. The streets in question are not owned by the corporation of New York. The corporation cannot sell or dispose of them, or even divert them to private use. Any and all titles or interest which the city has in them, is held for public use; is public property, and not private or municipal. By an exercise of State power, they were taken or confiscated to public use, and compensation made for them, not from any fund levied on the corporation, or its corporate property, or on the city or its inhabitants generally, but by an exercise of the taxing power of the State. The legislature acted under its taxing power in raising the fund or means of payment. It cannot be known that a single city corporator contributed any sum towards the purchase, and for anything that appears, the streets in question may have been wholly paid for by assessments upon non-residents. By force of the statute of 1813, the corporation became seised in fee of the land embraced within the streets, not absolutely as private or corporate property, but in trust for public use. The fee being vested in the corporation, the statutory command and authority followed to take possession, and hold the streets "in trust, that the same be appropriated and kept open as public streets forever, in like manner as the other public streets in said city are and of right ought to be." (2 R. *Page 212 L., p. 408, § 177, 178.) It would be strange, indeed, if these streets belonged to the city, and were beyond public control, when they were acquired by the exercise of the right of eminent domain, were confiscated to public use, when vested in the corporation, by the proceedings to open them. I am clearly of the opinion, that the city corporation has no property in the streets of a character to be protected by the constitutional limitations upon the right of eminent domain. It is, perhaps, unnecessary, in this case, to consider the question, whether in other streets of the city not opened under the act of 1813, the corporation has a property in them to be thus protected; but, if it were, my conclusions would be the same. Whether the fee or ownership of the bed of the ancient streets was originally vested in the government, or the land was taken and condemned for public use, under colonial or state acts, upon paying to the proprietors a compensation for the soil or easement, or was voluntarily ceded to the public, it seems plain to me that the corporation has no property in the soil of the streets, to be constitutionally protected against the acts of the State in regulating their use. It cannot be pretended that the absolute title and estate in the land embraced within the streets, have ever been granted to the corporation from any source. Whatever estate or interest it holds, either conferred by the Dongan charter or by the State, is in trust for the public use. It is not a trustee for the inhabitants of the city alone, but for the whole people. The corporation may exercise this trust, or it may have control over the public streets, or the power of regulating their use, but that is not corporate property, nor has the corporation or any of its corporators a private interest therein, or a right to derive profit therefrom.
5. The effect and object of the act of 1813, in relation to the streets in question, were to establish a public trust for the benefit of the whole people. All public streets or highways are for the use of the people of the whole State, whether located in town or country. The interest in such uses, or the ownership thereof, is publici juris. It is a prevalent notion that the inhabitants of the city have some distinct and peculiar right *Page 213 to the use of the streets not pertaining to the whole public, and that the corporation having paid for them, they are a semi-corporate property, and the right to govern and regulate their use a sort of corporate franchise. But this is an erroneous view. As has been seen, in regard to the streets opened under the act of 1813, compensation was made, not from the city treasury or from corporate property, but the fund for payment was raised by an exercise of the taxing power of the State. So, also, as to other streets; no compensation has been paid by the municipality, whether they were originally vested in the government, or, under colonial or State acts, opened by the exercise of the right of eminent domain. The character which the corporation has uniformly sustained has been that of trustee for the public. It was as such trustee that the State, in 1793, conveyed to it all its title, estate and interest in such street. (Greenleaf Laws.)
The interest in the use of streets being publici juris, the power of governing and regulating such uses is vested in the legislature, as the representative of the whole people. It is a part of the governmental or political power of the State, in no way held in subordination to the municipal corporation. If the legislature could not authorize the use of the streets in the way prescribed in the act of April, 1860, the power exists nowhere. The permission of the municipal government, the mere creation existing at the will of the State would add nothing to the power. I know of no restraint upon legislative action, unless it can be found in the constitution, and there is nothing there but the limitation on the exercise of the right of eminent domain. The city corporation, as feeholder of the streets, in trust, for public use as highways, is but an agent of the State. Any control which it exercises over them, or the power of regulating their use, is a mere police or governmental power delegated by the State, subject to its control and direction, and to be exercised in strict subordination to its will. The corporation, as such, has no franchise in connection with the use of the streets for the transportation of passengers. Whatever power or authority it possesses in respect to the carriage of *Page 214 persons for hire was derived from acts of the State legislature, which power may be resumed by the grantor at its pleasure. I am aware that what is called the franchise for carrying persons, for hire, over the streets of the city, and for receiving a pecuniary recompense for the enjoyment of this privilege by others, is claimed to have been enjoyed by the corporation from time immemorial, and to have been one of the privileges or franchises confirmed to it by the Montgomerie charter. But this rests in mere claim. Neither of the ancient charters granted to the city corporation the office of carrier of persons, or any power of licensing or receiving fees from others for the privilege. The Montgomerie charter did, indeed, grant to the corporation "the office of cartage, carriage and portage of all goods, wares, and merchandise and other things to be carted or carried in or through said city, or any part thereof." (Montg. Charter, § 19.) But it has not been supposed that even this was an irrevocable grant of property.
I discover no obstacle, therefore, to State legislation in respect to the use, as well of public streets and highways in the city as in the country. The power which the municipal corporation holds and exercises in controlling and regulating the use of streets of New York has been delegated to it by the State. It is a grant of governmental power for local purposes, subject to the control of the supreme power in the State. The legislature may at any time resume the power delegated. It is not necessary that the courts should maintain or even approve of the policy and justice of that species of legislative interference with the local affairs of a great municipality which the act under consideration discloses. The question is simply one of power. I cannot doubt that the power exists with the State legislature, without the consent or license of the municipal corporation, to so control the use of the public streets of the city as to authorize the construction of a railroad track therein, on which city passengers may be transported for hire. It can make no difference with the question that the right granted is in the nature of a franchise, for it proceeds from the sovereign. *Page 215 The judgment of the Supreme Court should be affirmed.
DAVIES, J., did not sit in the case. All the other judges concurred, substantially upon the grounds stated by WRIGHT, J., without passing upon the distinction between the extent of the public right in city streets and country roads, and other questions discussed by EMOTT, J. ROSEKRANS, J., was of the opinion that the power of the legislature extended only to governing the mode of passing upon the surface of streets, and that, subject to this, the city of New York had all the rights of the original proprietor of the soil, and might be entitled to compensation for any privation thereof. BALCOM and MARVIN, Js., suggested that, independent of the public right in streets, whether acquired by dedication or confiscation, and of any naked fee which might remain in the original owner, with the possible ultimate right of reverter, 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 of the street, or both, without compensation for his individual interest in the street or easement. This they said to preclude the conclusion, if such were possible, that any such an interest could be supposed to have been disregarded. They saw no such question in this case, and were, therefore, for affirmance.
Judgment affirmed. *Page 216