(concurring):
I concur with Mr. Justice O’Brien’s opinion in this case, and with Mr. Justice Hatch’s opinion in Dolan v. New York & Harlem R. R. Co. (74 App. Div. 434), wishing, however, to call attention to-the effect of the acquisition of the fee of Fourth avenue by the city of New York under the right of eminent domain. Fourth avenue-*185was originally laid out by the commissioners appointed under chapter 115 of the Laws of 1807. The Hew York and Harlem Railroad Company was incorporated by chapter 263 of the Laws of 1831, and was authorized to construct a railroad from any point on the north boundary of Twenty-third street to any point on the Harlem river between Third and Eighth avenues. The railroad company was required to obtain fhe consent of the mayor, aldermen and commonalty of the city of Hew York before operating its road upon any public street or avenue in the city. In pursuance of this authority, the Hew York and Harlem Railroad Company located the center line of its road along the center line of the proposed Fourth avenue from Twenty-third street to the Harlem river, and filed a map showing the location of its line, to which the municipality consented. Fourth avenue being thus laid out as a public street, but not actually opened or the fee acquired, Isaac Adriance, who owned the fee of the strip of land laid out as Fourth avenue, between One Hundred and Twenty-fourth street and One Hundred and Twenty-seventh street, in January, 1832, conveyed to the Hew York and Harlem Railroad Company a strip of land laid out on the map of the city of Hew York as Fourth avenue, twenty-four feet in width, running through the center of the said avenue between the said streets, to have and to hold “ for and during the full period of time during which the said parties of the second part may remain an incorporated company, and on which they are to construct their railroad and for no other purpose, with the power of sloping their embankments or excavations so much further beyoud the lines of said premises hereinbefore granted as may be necessary to support their work, not extending beyond the width of the avenue.” The Hew York and Harlem Railroad Company constructed a railroad upon the surface of Fourth avenue between those streets, using not over twenty-four feet in width, which was completed in 1836 or 1837, and using no portion of the remainder of the strip of land laid out as the avenue' for embankments or excavations. Fourth avenue between Thirty-fourth street and the Harlem river was subsequently widened to one hundred and forty feet, under the authority of chapter 274 of the Laws of 1837.
This being the condition, the city of Hew York commenced proceedings in the year 1850 to acquire the fee of Fourth avenue from *186Twenty-third street to the Harlem river, under the provisions of. chapter 86 of the Revised Laws of 1813. That proceeding was regularly prosecuted by the mayor, aldermen and commonalty of the city of New York. Commissioners were duly appointed, who made their report. In a map annexed to that report, showing the property taken in the proceeding, there is a strip of land in the center of Fourth avenue twenty-four feet in width, and it is indicated upon the map as the property of the New York and Harlem Railroad Company. The commissioner’s awarded to. the railroad company as the value of that strip- of land the sum of one dollar and made awards for other property acquired for the street. The railroad company appeared in that proceeding and filed objections to thp report, upon the.ground that the commissioners “propose to take a-strip of land twenty-four feet wide, belonging to said company, and' running through the center of said Fourth avenue from Thirty-eighth street to 135th street, for a nominal consideration,, whilst they have allowed full value of other adjoining parcels of land on each side of said strip to the owners thereof.” The report of the commissioners, with this objection, came on for a hearing at the Special Term of the Supreme Court, and,, after hearing counsel, the Supreme Court,, by order entered on the 29th day of October, 1853,. confirmed the report. From that confirmation an appeal was taken to the General Term of the Supreme Court, which, by order entered on the 15th -day of May, 1854, affirmed the order of the Special Term.
By the final confirmation of this report, to which the New York and Harlem Railroad Company was a party, the mayor, aldermen and commonalty' of the city of New York became seized in fee of “ all the said lands, tenements, hereditaments and premises in the said report mentioned that (was) required for the purpose of opening the said public square or place, street or avenue, or part or section of a street or avenue so to be opened, or for the purpose of laying out and forming the said street or public place so to be laid out and formed, * * * the same to be appropriated, converted and used-to and for such said purpose accordingly * * *: Intrust nevertheless, that the same be appropriated and kept open for, or as part of a public street, avenue, square or place forever, in like -manner as the other public streets, avenues, squares and' places in ..the said city are, and of right, ought to be.” (See R. L. 1813, *187chap. 86, § 178.) Under this act, the expense, including the award for property taken, was assessed upon the adjoining property, .as it was benefited by the opening of the proposed avenue. (See § 185.) The railroad company, at the time that this proceeding was instituted, was operating a railroad upon the surface of Fourth avenue, its right to operate that road having been acquired from the Legislature and the consent of the city authorities.
We will assume that this proceeding did not divest the railroad company of its right to exercise the franchise granted to it by the State and consented to by the city, and that the fee acquired by the city of New York was subject to the exercise by the railroad company of this franchise. But certainly all interest in this land, whether held by Adriance or the railroad company, consisting of the fee or reversion or other interest in the land, upon the confirmation of this report, vested absolutely in the city of New York, in trust, to maintain the same as a public street. After the confirmation of this report of the commissioners, the title of the railroad company acquired by virtue of the grant from Adriance vested in the city, and the city became the owner in fee of this whole strip of land, whether before owned by Adriance or by the railroad company. It was subject to the operation by the railroad company of its surface railroad, but, subject to that right, the fee vested in the city. The railroad company was a party to the proceeding, and was awarded by the commissioners what they considered to be the value of the property taken; and that award was confirmed by the court, notwithstanding the objection of the company.
It would seem, therefore, that after the final confirmation of the report of the commissioners, the railroad company retained no interest in this property that it had acquired from Adriance, except the right to exercise its franchise by the operation of a railroad upon the surface of the street. What right, then, did the abutting owners acquire by the opening of this avenue ? If, by the opening of this avenue, the .abutting owners acquired a property interest in it, I assume that, under the Constitution of this State, that property could not be taken from them without compensation, either by the State, a public corporation or a private individual; and neither the State nor a corporation exercising authority conferred upon it by the State *188could any more take the property that the abutting owner had in Fourth avenue without compensation than they could take the abuL ting property itself.' No matter how much the- State or a corporation wanted the property — no matter how insignificant the value of the property — if it was property that belonged to the abutting-owners, no one could appropriate it without compensation.
■By section 6, article 1 of the Oonstitution, it is provided that no person shall “ be deprived of life, liberty or property without due. process of law ; nor shall private property be taken for public use without just compensation.” If, therefore, the right of the abutting owners in Fourth avenue as appurtenant to the property is to have Fourth-avenue “appropriated and kept open for, or as part of a public street, avenue, square or place fdrever,” then, if effect is. to be given to this plain mandate of the Oonstitution, that property could neither be taken by the State, by a corporation for public use, or for any other .use, without compensation. In enforcing this constitutional mandate, the courts of this- State have given to this provision the broadest meaning, protecting the right of every individual, no matter how obscure or unimportant, in the enjoyment and possession of his property, no matter of how little value".
In Forster v. Scott (136 N. Y. 577) the question was whether the Legislature had power under the Constitution to enact that whenever land was exhibited upon a map for street purposes, at any time after the filing thereof, no compensation shall be made to the owner for any improvements put upon the land during the time between the filing of the map and the condemnation proceeding; the court said : “ Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon: such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of his property within the meaning of the Constitution. All that is beneficial in property arises from its use and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession.” In Cromwell v. MacLean (123 N. Y. 475) an act which confirmed a sale of land for the non-payment of taxes theretofore made, Avhich sought to validate a sale made under a void assessment, was held unconstitutional and void. In Morgan v. King (35 N. Y. 454) it Avas held that a river not capable in its *189natural state of being in use as a public highway could not be made a public highway by improvement without providing compensation to those having rights in the stream. In People v. O'Brien (111 N. Y. 40) it was held that a franchise granted to a street railroad is property which cannot be taken by the State without compensation. Many other cases could be cited in which the courts have uniformly held that any right or interest in specific real or personal property is protected by this provision of the Constitution. It is sufficient to say that this provision of the Constitution “ is to have a large and liberal interpretation, and that the fundamental principle of free government, expressed in these words, protects not only life, liberty and property in a strict and technical sense, against-unlawful invasion by the government in the exertion of governmental power in any of its departments, but also protects every essential incident to the enjoyment of those rights.” (People v. King, 110 N. Y. 423.)
The next question is, has an abutting owner on a street, the fee of which has been acquired by the city under the act of 1813, a property interest in the street. That such an abutting owner has a property interest in the street has been settled by a series of adjudications in the New York Elevated Railroad cases (Lahr v. Metropolitan El. R. Co., 104 N. Y. 281; White v. Manhattan Ry. Co., 139 id. 19), and the principle established in those cases has been applied in all cases where the right of the State or corporations to use the streets has been questioned. In the late case of Matter of City of New York, (168 N. Y. 134) the principle is reasserted. It is there said: “ The Harlem river is no less a highway than any of the public streets of New York city. It is the settled law of this State that the owners of lands abutting upon such streets have easements therein which are property rights and cannot be destroyed or abridged for a public use without compensation,” and in that' case there is said what I think applies with great force to this case: “ Nor are we concerned with the extent of appellant’s alleged loss. It is, undoubtedly, the fact that before the construction of this driveway the appellant’s riparian rights were of a very limited character. * * * It may even be, as suggested, that the appellant’s lands are more valuable now than they were before the construction of the ' speedway.’ However that may be, *190the fact remains that the question whether the appellant has been injured by the taking of his riparian easements and the extent of his- injuries, if any, lias never been passed upon. He was entitled to have that question decided, and the refusal of the commissioners, to consider it was error for which the order of the court below should be reversed.” In that case the street was built by a municipal corporation by direct mandate of the Legislature, and there was;, no doubt expressed by the Court of Appeals but that such an appropriation was illegal unless paid for. It being the settled law of this State that the appellants’ right in this street is property and that neither the Legislature nor the railroad companies, separately or combined, can take that property right in the street without compensation, the only remaining question that possibly can arise is; whether such a right is taken. That such a right is taken is. expressly found by the court below and is not disputed upon this, appeal. Indeed, it could not be, in view of., the many decisions in the elevated railroad cases upon this question. In the case of Fries v. New York & Harlem R. R. Co. (169 N. Y. 270), however, it seem® ' to have been held that because this structure was built by commissioners appointed by the Legislature, and that since it was thus; built the railroad companies have used it under the direct authority of the Legislature the defendants were not guilty of a trespass; buty assuming that this was so* that these defendants have not been concerned in the construction of this elevated railroad in the street, and that the State itself was the wrongdoer in appropriating the plaintiffs’ property without their consent and without compensation, is-that any reason why in an action brought by the persons whose property has been appropriated by such a structure they should not be entitled to have the structure removed and their property restored to them in the condition it was before the illegal appropriation % That is the relief that the plaintiffs ask in this case. That the railroad companies would be proper parties to an action for that purpose must be conceded. There is no claim that there is a defect of parties defendant in that others should be joined; and I had always supposed that where the State through its officers or agents, has appropriated the property of an individual that individual had a right of action against the agents who have appropriated his property to recover possession of it, and that in such a case a court *191of equity where the person despoiled of his property has no remedy at law would interfere for his protection. The decision in the Fries case seems to he based upon the fact that the plaintiff in that case had not attacked the constitutionality of the law providing for the erection of this structure without compensation, but, on the contrary, alleged it to be valid* and based his right to relief upon .the law being a valid exercise of legislative authority. But in this case the complaint,alleges that the acts and doings of the defendants in erecting and maintaining the said elevated railroad structure in front of the plaintiffs’ premises, and in erecting the stations and platforms and the stairway, have been without right or authority, and without the consent of the plaintiffs, and that the defendants have obstructed and continue to obstruct the said street and sidewalk in front and adjacent to the plaintiffs’ premises, and have entered upon and in jured and destroyed the property of these plaintiffs, viz., their easement of the right of ingress and egress to and from said premises, and of unobstructed light and air to the same from, through and over the said Park avenue in front thereof and adjacent thereto, and have deprived the plaintiffs thereof; and the relief asked for is that the defendants be enjoined and restrained from maintaining, continuing or using the elevated railroad structure and its appurtenances in the complaint described, and the said station and station platform and appurtenances thereto. If this structure appropriates the plaintiffs’ . property without their consent or without compensation, it is as to them an illegal structure, whether authorized by the Legislature or not, and in an action brought against the persons or corporations in possession of this structure it would seem to follow that the plaintiffs are entitled to an injunction restraining its maintenance and use.
1 feel that this question is most serious, as if the plaintiff can have no relief the constitutional prohibition, before always enforced, preventing these corporations from appropriating the property of the individual without his consent and without compensation is abrogated.