I concur with the presiding justice. I think that we should meet the question whether the defendants have the right of eminent domain. The learned justice at Special Term writes in his opinion that if he were satisfied that the defendants possessed such right, he would not hesitate to deny the injunction upon condition that condemnation proceedings should be commenced, but having concluded that the plaintiffs’ rights cannot be taken in in/oitum, he is compelled to uphold the plaintiffs’ contention and to enjoin interference with their property. That learned justice further writes that he discusses the question of the power of condemnation upon the suggestion that the injunction might be withheld upon the filing of a bond by the defendants to commence proceedings within a reasonable time, and that if he were satisfied that such proceedings would lie, he would make such disposition of the case. “ But,” he concludes, “ I have no alternative.”
Thus it conclusively appears that the disposition made by the court was not that which it would have made had it believed that the defendants were clothed with the power of eminent domain. We have, then, the announcement of a court of equity that it does not decree what it would, but only what it could. If we think that the court was hindered and hampered by a mistaking of the law, then we should say this, in order that the decree may be made as the court would have entered it but for its error of law.
Judgments modified in accordance with opinion of Q-oodeioh, P. J., and as modified affirmed, without costs of this appeal.