The defendant had acquired from the State a franchise to build and operate its road through the counties and region which the State subsequently, by the act of 1895 (Chap. 395, amending Laws of 1892, chap. 488, § 290), provided might be acquired for the purposes of the “Adirondack Park.”
Under the franchise so acquired, the defendant was proceeding to extend its road through such counties, and to that end, on the 18th day of September, 1897, filed in the several counties in question a map and profile of its proposed route, and at once gave .the requisite notice to the owners of the lands through which it passed. Such proposed route has never been changed.
At that time the State had not acquired any interest in the strip *36of land so located. There is no claim that it had either acquired a conveyance of, or taken any proceedings to condemn, such strip prior to that date.
It is said in Rochester, Hornellsville & L. R. R. Co. v. N. Y., L. E. & W. R. R. Co. (44 Hun, 206-210) that when a railroad company has filed the map and given the notice required by the statute, it has thereby “ acquired a vested and exclusive right to build, construct and operate a railroad on the line which it has adopted.” And again (on p. 211), it is said that such railroad company “ has a franchise conferred upon it by the legislature to construct its ro'ad over the established line.”
This case decided that the owner to whom such notice was given, and who had failed to obtain a change of the line, in the method provided by the statute, could not convey the land over which such line passed to a purchaser or lessee, unaffected by the company’s right to complete its title by condemnation, and thereafter to construct its road thereon. This decision was unanimously affirmed by the Court of Appeals (110 N. Y. 128), and in that case (on p. 133) the following language is used: “ This right to locate its line of road, at its election, is delegated to the corporation by the sovereign power, as is the right, subsequently, to acquire, in invitum, the right of way from the landowner, and any land needed for the operation- of its road. * * * When, therefore, a corporation has made and filed a map and survey of the line of route it intends to adopt for the construction of its road, and has given the required notice to all persons affected by such construction, and no change of route is made, as the result of any proceeding instituted by any landowner or occupant, in our judgment, it- has acquired the right to construct and operate a railroad upon such line, exclusive in that respect as to all other railroad corporations and free from the interference of any party. By its proceedings it has impressed upon the lands a lien in favor of its right to construct, which ripens into title through purchase or condemnation proceedings.” (See, also, Suburban Rapid Transit Co. v. Mayor, etc., of N. Y., 128 N. Y. 510 ; Pocantico Water Works v. Bird, 130 id. 249, 256.)
Hpon the authority of these cases it is clear that, as a purchase!’, the State took, under the conveyance to it of the strip of land in question, no title except such as was subject to the right of the *37defendant to perfect, by condemnation proceedings, its title thereto. At the time the defendant filed its map and gave the notice above stated, the strip described therein was no part of the Adirondack Park nor of the forest preserve. Until purchased or condemned, it was no part of such premises, and it would never become a part thereof unless in the judgment of the proper commission it was deemed necessary for such purpose. When the commission, after concluding that it was necessary, attempted to procure the same, this strip had become impressed with the rights of the defendant, as above specified, and any conveyance which the owner could give was subjected to that right. So far as the State claims under its deed it stands simply as a purchaser. It acquires the rights which its grantor had-—mo more, and, as purchaser, it can claim no more. By making the purchase and taking that conveyance the State was not exercising the right of eminent domain; it was simply acquiring by contract the title which the Indian River Company then had. No other rights than theirs were transferred, and no others were affected by such conveyance. It was upon this theory that a majority of the court concurred in the case of Adirondack Railway Co. v. Indian River Co. (27 App. Div. 326, 335).
Nor did the State acquire any greater interests in the lands by the condemnation proceedings which it claims to have instituted under the provisions of sections 3 and 4 of chapter 220 of the Laws of 1897.
Such proceedings were taken against the Indian River Company only, and the notice required to be given by the 4th section of that act was given to that company only. No notice whatever was given to this defendant. No description of its rights in, or claim to, the strip in question was mentioned or referred to in the certificate filed. No actual possession has ever been taken of this strip. Not a thing in the record indicates an intent to acquire or cut off the rights of the defendant in such strip ; and the defendant has never been in a position where, under the provisions of sections 5 and 6 of that act, it could ask damages against the State for any rights of which it has been deprived. The proceeding seems to have been to acquire only the rights which the Indian River Company had in the premises, and by such a proceeding the State has acquired no more than it did by its grant from the same company.
Clearly, under the decisions above cited, the defendant had *38acquired property rights in that strip of land, which neither a conveyance from the owner, nor condemnation proceedings against such owner alone, could operate to cut off.
The question is not now presented to us, whether the State may, under the exercise of its right of eminent domain, take from this defendant the rights which it has acquired in the strip of land in question, but whether it has as yet actually done so. In our judgment it has not.
When the strip of land in question was located by the appellant, it passed through lands which were no part of the forest preserve. Hence no provision of the Constitution, nor of any law, was applicable to prevent it, and when it was taken into that preserve, it was taken by the State subject to the rights which the appellant had then already impressed upon it.
We, therefore, conclude that no reason has been shown why the defendant is not entitled to proceed with the condemnation proceedings it has inaugurated. The judgment restraining it from so doing was erroneous and should be reversed.
All concurred, except Herrick, J., dissenting in opinion, and Putnam, J., not sitting.