The principal question to be determined in this case is, has the plaintiff's property been taken for public use within the meaning of the Constitution of this State?
The plaintiff claims that by the true construction of the deeds from the city to his original grantors, the bed of Front (then Water) street was included in the grant, and that he is now the owner of the fee of one-half of the bed of Front street in front of his lots. But if this claim be not sustained, then he insists that, in the original grants of the premises in question, the city of New York covenanted with his grantors that Front street should be and remain an open street forever. That this covenant, being for the benefit of the abutting lands, is one running with the land, and the right or privilege secured thereby constitutes property within the meaning of article 1, section 6, of the Constitution, which provides that "private property shall not be taken for public use without just compensation."
The plaintiff's lots, numbers seven and nine, abutting on Front street, were formerly water lots, or lands under water. These lots, and the streets, were part of a larger tract owned by the city, which, prior to 1773, it caused to be surveyed and laid out into streets and lots and designated upon a map.
In May and December, 1773, the city granted and conveyed one of the plaintiff's lots, with other lands, to one De Peyster and the other lot to one Ellison. The boundary of the grant on one side began at Dock street, extending easterly across the street then shown on the map as Water (now Front) street, to what would be the westerly limits of the East river when the lands should be filled in and the streets mentioned in said grant made and constructed. *Page 164
The plaintiff's lots are described as being upon the side of Water (now Front) street, as by the survey made of these and sundry other lots by Gerard Bancker, dated the tenth day of November, 1772, and filed in the office of the town clerk, as will more fully appear, with the appurtenances thereto belonging and appertaining.
The grantees covenanted and agreed to widen Dock street fifteen feet, and to build and construct a good and substantial street as so widened; to make and construct Water (now Front) street, and also to build and erect a good substantial dock or street on the outward boundary of their respective grants, and the deed then declares "which said several streets shall forever thereafter continue and be for the free and common passage of, and as public streets and ways for, the inhabitants of the said city, and all others passing through or by the same, in like manner as other streets of the same city now are, or lawfully ought to be." The trial court finds that the grantees made and constructed the several streets mentioned in the grant, and that the plaintiff is now the owner of said lots upon which "is erected a warehouse occupying the entire front, and four stories high." The defendant insists, and the trial court found, that, by the true construction of the deed, the bed of Front street was excepted therefrom, and never passed to the plaintiff's original grantors.
The necessary effect of this construction of the grant is to make the covenant found therein, that the said several streets shall forever thereafter continue to be public streets, a covenant of the city and not of the grantees; for we must assume that the covenant was made by the party who held the title to the bed of the street, and therefore had power to control its use, and not by one who had no title and consequently no such power. If the bed of the street was included in the grant, and the title thereto passed to the grantees, then it is even more clear that the covenant must be deemed the covenant of the city. The land designated on the map as a street, with other lands on both sides thereof and abutting thereon, being conveyed to private persons, could not become a street *Page 165 except by proceedings taken for that purpose, or by a dedication of it by the owners to the public use, and its acceptance by the public. Mere dedication is not enough; lands so dedicated do not become a public street until accepted by the public authorities. The construction of the streets by the grantees in performance of the covenant on their part would amount to a dedication of the street to public use. The covenant of the city that the streets when constructed should be, and remain, public streets forever, constitutes an acceptance by the city of the lands thus dedicated. (Oswego v. Oswego Canal Co., 6 N.Y. 257; Lee v.Sandy Hill, 40 id. 442; Requa v. Rochester, 45 id. 129; 6 Am. Rep. 52.) Assuming the construction placed upon the grant by the court below to be correct, we have to consider the effect of such a covenant in a grant of land made by a municipal corporation having authority to lay out and open streets, and to acquire lands for that purpose.
Where an individual conveys village or city lots, designated upon a map as abutting upon a public street, the map being referred to in the deed, it is well settled that the grantee acquires, as against the grantor, a right of way over the strip of land referred to as a street, although the same may not in fact be a public street, not having been accepted by the public as such; yet, as between the parties to the grant, the land is deemed to have been dedicated to the public by the grantor, and he cannot thereafter appropriate said lands to any use inconsistent with their use as a public street. (Oswego v.Oswego Canal Co., 6 N.Y. 257; Cox v. James, 45 id. 557;Smyles v. Hastings, 22 id. 217; In re The Mayor, etc., 2 Wend. 472; In re The Mayor, etc., 1 id. 262.)
The same rule applies to the State, or a municipal corporation when it deals with its lands as owner or proprietor. (City ofOswego v. Oswego Canal Co., supra.)
In the case 1 Wend. 262, the court says, in such a case the grantee "obtains a perpetual right of way over the space called a street." In 2 Wend. (supra) in such a case, the court says, "a covenant will be implied that the purchaser shall have an easement *Page 166 or right of way in the street to the full extent of its dimensions."
The city of New York having power to lay out and open streets, and to acquire lands for such purposes had power to dedicate its own lands to such uses and to bind itself by a covenant with its grantees of abutting lands that a particular street should forever be kept as a public street. What interest then, if any, did the grantees acquire in the bed of the street by such grant and covenant?
M. purchased land in a village adjoining a public street, and it was at the same time agreed between him and the grantor that a triangular piece of land belonging to the latter, on the opposite side of the street, and in front of the land sold, should never be built upon, but should be deemed public property; and the grantor executed to the grantee a deed of the land sold and a bond for the performance of the agreement as to the triangular piece of land, both instruments being proved and recorded.
H. afterward purchased of the grantee the land opposite the triangular piece, after being informed by him of the privilege secured by the bond.
Held, by the chancellor, that H. was entitled to the benefit of the agreement, and that the grantee could not, without his (H.'s) consent, be permitted to make a new arrangement with the holder of the legal estate in the triangular piece, by which buildings should be erected thereon. That this right or privilege constituted an easement in the triangular piece. It was further held that easements are annexed to the dominant tenement and pass to the grantee of such estate. It was also held, that they are also a charge upon the estate of the servient tenement, and follow such an estate into the hands of those to whom such servient tenement or any part thereof is conveyed. (Hills v.Miller, 3 Paige, 256.)
The same question was again before the chancellor in the case of The Trustees of Watertown, and White v. Cowen and Bagg (4 Paige, 510), where it was again held that a grantee of a lot adjoining a public square, who has a special covenant *Page 167 from the original owner of the ground that it shall be kept open for the benefit of his land may restrain the grantor from violating the covenant. It was also held that a covenant in a deed of land not to erect a building on a common square, owned by the grantee in front of the premises conveyed, is a covenant running with the land, and was the grant of a privilege or easement which passed to a subsequent grantee of the estate without any special assignment of the covenant.
The principle of these cases was recently affirmed by this court in the case of Phœnix Ins. Co. v. Continental Ins. Co. (87 N.Y. 400).
In the case last cited, H. conveyed land to S. by deed, and the grantee covenanted for himself, his representatives and assigns not to erect, or cause to be erected, any building or erection on a certain specified part of the premises conveyed, which adjoined the remaining land of the grantor, and it was held, all the judges concurring, that such a covenant, both in respect to the burden and the benefit, adheres to and follows the respective parcels of land through all the devolutions of the title; and the right to enforce the covenant passed to the plaintiff as subsequent grantee of H. of the dominant tenement, and the covenant would be enforced by a court of equity against a subsequent purchaser of the servient tenement, who purchased with notice of the covenant. These cases are directly in point, and it follows that, by the law of this State as interpreted and held by its highest courts for the last fifty years without criticism or doubt, the grantees of the city, by force of their grant, acquired the right to have Front street kept forever as a public street. The street thus became what is known to the common law as the servient tenement, and the lots abutting thereon the dominant tenement. Such servitude constitutes a private easement in the bed of the street attached to the lots abutting thereon, and passed to the plaintiff as the owner of such lots. That an easement is property, within the meaning of the Constitution, cannot be doubted. This was expressly adjudicated in this court in the case of Arnold v. The Hudson River Railroad Company (55 N.Y. 661). Arnold owned a nail factory, *Page 168 together with the right to take a certain quantity of water from a creek, and to convey it over or under the surface of intervening lands to such factory to propel machinery. For this purpose he built a trunk about six feet above the surface, through which the water was conveyed. In 1850, the defendant, having acquired title to a portion of the intervening lands, constructed tracks thereon, removed the portion of the trunk over said surface without Arnold's knowledge, and constructed another trunk under the lands, through which the water was conveyed and then raised by a pen-stock into the old trunk near the factory.Held, by the concurrence of all the judges voting, that Arnold's easement was property within the meaning of article 1, section 6, of the Constitution, and therefore could not — nor could any portion of it — be taken for public use without compensation.
In Doyle v. Lord (64 N.Y. 432; 21 Am. Rep. 629), this court held that a lessee of a store had an easement for the purpose of light and air, in a yard attached to the building. In Sixth Ave.R.R. Co. v. Kerr et al. (72 N.Y. 330), this court also held that an easement in a public street may be condemned and taken for public use.
The next question to be considered is, has the plaintiff's property been taken by the defendant, within the meaning of the Constitution of this State? To constitute such a taking it is sufficient that the person claiming compensation has some right or privilege, secured by grant, in the property appropriated to the public use, which right or privilege is destroyed, injured or abridged by such appropriation. Has the plaintiff's easement in Front street been destroyed, or injured, by the appropriation of the street to the uses of the defendant's road? As we have seen, the plaintiff acquired nothing more than a right to have the street kept as a public street, and this must be deemed to be held subject to the power of the legislature to regulate and control the public uses of the street.
This brings us to the question whether the occupation of the street by the defendant's road is compatible with, or destructive of its use as a public street. *Page 169
Front street is about forty-five feet in width, the road-way between the curbstones being about twenty-four feet wide.
The trial court has found as a fact that the defendant's road is to be constructed upon a series of columns about fifteen inches square, fourteen and a half feet high, placed about five inches inside the edge of the sidewalk and carrying cross girders, which support four sets of longitudinal girders, upon which are placed cross ties for three sets of rails for a steam railroad; that the girders are thirty-nine inches deep; the longitudinal girders thirty-three inches deep; that the line of columns abridges the sidewalk and correspondingly interferes with the street and thoroughfare where such columns are located thereon.
That the structure as proposed on Front street will fill so much of the carriage-way of the street as is about fifteen feet above the road-way. The effect of such structure the court finds will be to some extent to obscure the light of the abutting premises opposite to it, and will to some extent impair the general usefulness of the plaintiff's premises and depreciate their value.
Can the street be lawfully appropriated to such a structure without making compensation to the plaintiff for his easement therein? This is a question of power. If the legislature has power to authorize such a structure, without compensation, its exercise cannot be regulated by the courts. It one road may be authorized to be constructed upon two series of iron columns placed in the street, another may be authorized to be supported upon brick columns, or upon brick arches spanning the street. If a superstructure may be authorized which spans the entire carriage-way at fifteen feet above the bed of the street, one may be authorized which spans the entire street, from building to building, thus excluding light and air from the street and from the property abutting thereon. Thus an open street would be converted into a covered way, and so filled with columns or other permanent structures as to be practically impassable for vehicles. The city undertook and agreed with the plaintiff's grantors that Front street, when constructed by *Page 170 them, should forever thereafter continue and be kept as a public street in like manner as other streets of the same city now are or lawfully ought to be. This fixes with definiteness and precision the character of the street which the parties to the contract intended to secure. As the other streets of the city were, or lawfully ought to be, so this street was to be; it was to be an open street; one which would furnish light and air to the abutting property, and a free and unobstructed passage to the inhabitants of the city. A covenant to keep a strip of land open as a public street forever is a covenant not to build thereon, and brings this case directly within the principle of the cases of Hills v. Miller, The Trustees of Watertown, and White v.Cowen and Bagg, and the Phœnix Ins. Co. v. The ContinentalIns. Co. (supra). While the legislature may regulate the uses of the street as a street, it has, we think, no power to authorize a structure thereon which is subversive of, and repugnant to the uses of the street as an open public street. Whether a particular structure authorized by the legislature is consistent or inconsistent with the uses of the street as a street must be largely a question of fact depending upon the nature and character of the structure authorized.
The court below found that the series of iron columns abridges the street, and the superstructure erected thereon obscures the light to the adjoining premises, and depreciates the value of the plaintiff's property.
The extent to which plaintiff's property is appropriated is not material; it cannot, nor can any part of it, be appropriated to the public use without compensation.
We think such a structure closes the street pro tanto and thus directly invades the plaintiff's easement in the street as secured by the grant of the city.
Whatever view be taken of the facts of this branch of the case, the same result must be reached. If the title to the bed of the street passed to the grantees of the city, then the public acquired a mere easement in the street, resulting from its dedication to public use, the easement resting upon the express covenant of the owner of the fee that the street shall be kept *Page 171 as a public street forever. The fee remained in the owner making the dedication, and he having sold lots abutting upon the street, the purchaser, as we have already soon, obtained a perpetual right of way over the space called a street to the full extent of its dimensions. Whether the bed of the street was excepted from the grant of the city, and the title thereof never vested in the grantees, or whether the bed of the street was included in the grant and passed to such grantees, is of little importance, as in either event the plaintiff has a private easement of a right of way in the street, coupled with an express covenant that the entire space, marked on the map as Front street, shall forever be kept as a public street.
The defendant's railroad, as authorized by the legislature, directly encroaches upon the plaintiff's easement and appropriates his property to the uses and purposes of the corporation. This constitutes a taking of property for public use. It follows that such a taking cannot be authorized except upon condition that the defendant makes compensation to the plaintiff for the property thus taken.
The conclusion here reached is not in conflict with the determination of this court in the cases of The People v.Kerr (27 N.Y. 188), Kellinger v. Forty-second St., etc.,R.R. Co. (50 id. 206), and other similar cases.
We agree with CHURCH, Ch. J., in the case last cited, that "it is not quite clear as to what was intended to be decided by the court in The People v. Kerr, relative to the right of abutting owners."
In that case all of the private parties were abutting owners upon streets that had been opened under the act of 1813, whereby the city acquired the fee of the street, "in trust, nevertheless, that the same be appropriated and kept open for, or as a part of a public street, avenue, square or place, forever, in like manner as the other public streets in said city are, or of right ought to be." The only question which could have been there presented and determined, so far as the abutting owners were concerned, was whether the use to which the street was appropriated by the act authorizing the construction *Page 172 of what are known as horse or street railroads, appropriated the streets to a use inconsistent with their use as open public streets. Whether the rights of abutting owners in the streets were invaded, depended upon the nature and extent of the interest acquired by the public in the lands embraced therein. It is well settled that the State in the exercise of the right of eminent domain, or a corporation having the delegated power, may acquire such an interest or estate as in the judgment of the legislature the public services may demand. (Heyward v. The Mayor of NewYork, 3 Seld. 314.) It may acquire the property in fee-simple absolute, or a qualified fee, or an easement merely, or the right to a temporary or permanent use of the property (Sixth AvenueR.R. Co. v. Kerr, 72 N.Y. 333), and the compensation to be made is regulated by the extent of the interest acquired. The proceedings by which land is acquired by the exercise of the right of eminent domain amount to a statutory conveyance of the same to the public or the corporation, and there is no distinction between such a conveyance and a voluntary conveyance made for a public use. Where property is acquired for public use by proceedings in invitum, the statute which authorizes the acquisition constitutes the contract between the citizen and the public; and when the interest has once been acquired it cannot be changed or enlarged without further compensation. It is only where the title is acquired in fee-simple absolute that the property may be converted to other public uses, or the particular use ceasing, it may be sold and conveyed, and converted to private uses. (Heyward v. The Mayor of New York, 3 Seld. 314;Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 239; 6 Am.Rep. 70.) But where the public acquire, not the property itself, but the mere right to use it for a particular purpose, the title of the former owner is not extinguished, but is so qualified that it can only be enjoyed subject to the easement. In such case the title of the public is limited to the particular use, with the powers and privileges incident thereto, such as the right to use the timber and soil for the purpose of constructing and maintaining *Page 173 the street. The former proprietor still retains his exclusive right in all mines, quarries, springs of water, timber and earth and may enjoy the beneficial ownership of the fee for every purpose not incompatible with the public use for which the land was taken, and may maintain trespass, ejectment, or waste (Jackson v. Hathaway, 15 Johns. 447; The PresbyterianSociety of Waterloo v. The Auburn Rochester R.R. Co., 3 Hill, 567), and the use ceasing, the title reverts to the former owner, freed from the public easement.
By the act of 1813 the city acquired the fee in the street, in trust, however, for a particular public use. Conceding that this trust is for the benefit of the abutting owner, as well as for the public, the only right which he has in the street is the right to insist that the trust be faithfully executed. So long as the street is kept open as a public street, the abutting owner cannot complain. The question presented in the case of People v. Kerr was whether the particular structure there authorized was inconsistent with the continued use of the streets as open public streets of the city. Whether it was or not was a question of fact dependent upon the nature and character of the structure there involved. The court found and determined that it was not inconsistent with the public uses of a public street, but was in aid of such uses.
And in Kellinger v. The Forty-second Street, etc., R.R. Co. (50 N.Y. 206) this court limits the decision in the case of thePeople v. Kerr to a "simple declaration that the legislative authority to construct a railroad on the surface of the street without a change of grade was a legitimate exercise of the power of regulating the use of public streets for public uses."
The question whether the abutting owners upon streets opened under the act of 1813 had the right to prevent their being converted to a use destructive of their existence as public streets was not deemed by the court to be involved in that case.
This appears from the report of the case. DAVIES, J., did not sit in the case. ROSEKRANS, J., was of the opinion that the power of the legislature extended only to governing the mode of passing *Page 174 upon the surface of streets, and Judges BALCOM and MARVIN, concurring in the result, stated that "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 incidental interest or easement in the street. This they said to preclude the conclusion, if such a thing were possible, that any such interest had been disregarded. They saw no such question in the case." But the question which was not seen to be involved in that case is the only question involved in the case now under consideration. The question here presented is, not whether the legislature has the power to regulate and control the public uses of the public streets of the city, but whether it has the power to grant to a railroad corporation authority to take possession of such streets and appropriate them to uses inconsistent with and destructive of their continued use as open public streets of the city.
Had the act in that case authorized the corporations to take permanent and exclusive possession of portions of the street, to build sidings, and to permanently occupy them with rows of cars standing in front of the stores and residences of abutting owners, and to erect permanent depot buildings within the limits of the streets for the accommodation of their passengers, we cannot doubt that a different result would have been reached in that case. The fact that a particular structure is found to be consistent with the uses of a street is no evidence that a different structure is not inconsistent with such uses. The conclusion reached in the present case is based upon the character of the structure here involved. The language of WRIGHT, J., in The People v. Kerr, that the abutting owners have no property, estate, or interest in land forming the bed of the street in front of their respective premises to be protected by the right of eminent domain, must be construed with reference to the point thus being considered. This court had held in the case of Williams v. The New York *Page 175 Central R.R. Co. (16 N.Y. 107) that where the public had acquired a mere right of way over the land of another, the laying down of railroad tracks and constructing a steam railroad in the street of a city was an enlargement of the use as understood and contemplated by the parties at the time the land was acquired, and imposed an additional burden upon the fee, and that such act could not be authorized without compensation to the owner.
This case was cited and relied upon in support of the claim of the abutting owners; but the answer was that the abutting owners did not own the fee of the street; that such fee being in the public, the legislature might lawfully appropriate it to any public use consistent with the trust for which it was held, notwithstanding such use of a street may not have been known or contemplated at the time the land was acquired. Having parted with the fee the abutting owner could not maintain trespass or waste, and against an act which did nothing more than to impose an additional burden upon the fee, he could not invoke the inhibition of the Constitution that private property shall not be taken for public use without compensation. Thus understood, we think the language of WRIGHT, J., not subject to criticism, and furnishes no support to the claim now made that the owner, whose lands were taken and are now held in trust, to be appropriated and used as open public streets forever, has no standing in court to insist that the trust shall be kept and that the streets shall not be destroyed.
This precise question was before the Supreme Court of the United States in the case of Railroad Company v. Schurmeir (7 Wall. 272). In deciding the case that court says: "Attempt is also made to justify the acts of the respondents (the railroad company) as grantees of the State, upon the ground that the complainant, in dedicating the premises to the public as a street, levee and landing, parted with all his title to the same, and that the entire title vested in fee in the State, respondents rely for that purpose upon the statute of the Territory of Minnesota. Suppose the construction of that provision, as *Page 176 assumed by the respondents, is correct, it is no defense to the suit, because it is, nevertheless, true that the municipal corporation took the title in trust, impliedly, if not expressly, designated by the act of the party in making the dedication. They could not, nor could the State, convey to the respondents any right to disregard the trust, or to appropriate the premises to any purpose which would render valueless the adjoining real estate of the complainant."
That this trust created by the act of 1813 was intended to be for the benefit of the abutting owner, as well as for the public, we cannot doubt. City property has little or no value disconnected from the streets upon which it abuts. The opening of a city street makes the property abutting thereon available for the purposes of trade and commerce, and greatly enhances its value. The act of 1813 proceeds upon the assumption of this well-known fact, and the damages sustained by reason of the taking were assessed in view of the trust assumed by the public, that such lands were to be kept as open public streets forever. The public did not assume to take the lands in fee-simple absolute, but took and paid for a lesser estate; and, in pursuance of the theory of the statute that the abutting owner has a special interest in the street, the cost of the lands was immediately assessed back upon the abutting property. All the owner has ever received for the lands taken under this act is the benefit accruing to his abutting property by reason of the trust for which the lands are held. Having surrendered his land in consideration of the trust assumed by the public, if the trust can now be abrogated and the streets surrendered to the uses and purposes of a railroad corporation, it follows that, by indirection, private property may be taken for public use against the consent of the owner, and without compensation.
We have examined the other cases cited by the learned counsel for the respondent, and in none of them do we find authority for the claim here made. The case of The Transportation Company v.Chicago (99 U.S. 635) is not in point. The injury there complained of was necessarily done in the extension *Page 177 of a city street. The interruption was temporary, ceasing with the completion of the work. This case is decided upon the elementary principle that the public have a right to make such use of the land taken for a street as may be deemed necessary for its proper construction, repair or maintenance. Within this power is included the right to fix the grade of the street, and to change such grade from time to time as the necessities of the public may require; but, whether the grade be elevated or depressed, it is still a public street, to which the public have the right of free access, subject to such police regulations as may be adopted by the public authority having charge and control of the same.
The argument has been pressed upon our attention with great ability that as railroads, like streets, are intended to facilitate trade and commerce, and lands taken for either are taken for public use, the legislature may, in its discretion, appropriate the public streets of our cities to the use of railroad corporations, and this without reference to the form of their structure or the extent of the injury wrought upon property abutting thereon. This is a startling proposition, and one well calculated to fill the owners of such property with alarm. It cannot be that the vast property abutting on the streets of our great cities is held by so feeble a tenure. This court has repeatedly held that such a rule has no application where the abutting owner owns the fee of the bed of the street; and we are of opinion that in cases where the public has taken the fee, but in trust to be used as a public street, no structure upon the street can be authorized that is inconsistent with the continued use of the same as an open public street. The obligation to preserve it as an open street rests in contract written in the statute under which the lands were taken and which may not be violated by the exercise of any legislative discretion. Whatever force the argument may have as applied to railroads built upon the surface of the street, without change of grade, and where the road is so constructed that the public is not excluded from any part of the street, it has no force when applied to a structure like that *Page 178 authorized in the present case. The answer to the argument is that lands taken for a particular public use cannot be appropriated to a different use without further compensation; that the authority attempted to be conferred by the legislature upon the defendant to take exclusive possession of portions of the public street, and to erect a series of iron columns on either side thereof, upon which a superstructure is to be erected spanning the street and filling the road-way at fifteen feet above the surface, thus excluding light and air from the adjoining premises, is an attempt to appropriate the street to a use essentially inconsistent with that of a public street, and in respect to the land in question violates the covenant of the city made with the plaintiff's grantors, and in respect to lands acquired under the act of 1813 violates the trust for which such lands are held for public use.
The argument drawn from the great benefit which these roads have conferred upon the city of New York can have but little weight in determining the legal question presented in this case. No doubt these roads have added much to the aggregate wealth of the city of New York, and have greatly promoted the convenience of its citizens; but the burden of so great a public improvement cannot rightfully be cast upon a few of its citizens, by appropriating their property to the public use, without compensation. The inhibition found in the Constitution against the right of the sovereign to appropriate private property to public use without making compensation therefor was intended to secure all citizens alike against being compelled to contribute unequally to the public burdens.
We are of opinion that the law under which the defendant is incorporated authorizes it to acquire such property as may be necessary for its uses and purposes, upon making compensation therefor. This was substantially determined in the Matter of NewYork Elevated Railroad (70 N.Y. 327); Gilbert Elevated RailwayCo. (id. 361).
We have reached in this case the following conclusions:
First. That the plaintiff, by force of the grant of the city, made to his grantors, has a right or privilege in Front street, *Page 179 which entitles him to have the same kept open and continued as a public street for the benefit of his abutting property.
Second. That this right or privilege constitutes an easement, in the bed of the street, which attaches to the abutting property of the plaintiff, and constitutes private property, within the meaning of the Constitution, of which he cannot be deprived without compensation.
Third. That such a structure as the court found the defendant was about to erect in Front street, and which it has since erected, is inconsistent with the use of Front street as a public street.
Fourth. That the plaintiff's property has been taken and appropriated by the defendant for public use without compensation being made therefor.
Fifth. That the defendant's acts are unlawful, and as the structure is permanent in its character — and, if suffered to continue, will inflict a permanent and continuing injury upon the plaintiff — he has the right to restrain the erection and continuance of the road by injunction.
Sixth. That the statutes under which the defendant is organized authorize it to acquire such property as may be necessary for its construction and operation by the exercise of the right of eminent domain.
Seventh. The injunction prohibiting the continuance of the road in Front street should not be issued until the defendant has had a reasonable time after this decision to acquire the plaintiff's property by agreement, or by proceedings to condemn the same.