If it clearly appeared that the right of the plaintiff to maintain and use its railroad tracks in the public avenues and streets in question has terminated, I would not vote to enjoin the municipal authorities from removing its tracks and excluding it from using the avenues and streets, for I think that the Court of Appeals did not by its decision in City of New York v. Bryan (196 N. Y. 158) intend to hold that the city in such case would be powerless to act and that it would rest entirely with' the People of the State, through their Attorney-General or otherwise, to intervene or not intervene in their discretion to restore the rights of the public; but it appears to be conceded that the plaintiff was organized by the consolidation of the. Hudson River Railroad Company, which ivas incorporated by chapter 216 of the Laws of 1846, for the period of 50 years only, and the New York Central Railroad Company, which was duly organized under the laws of this State with a charter for 500 years. The consolidation was duly effected during the corporate lives of the two companies, pursuant to the provisions of chapter 917 of the Laws of 1869. • It is claimed on the part of the plaintiff that the effect of the agreement between the two companies entering into the consolidation was to incorporate, the plaintiff, *589the consolidated company, for the period of 500 years. I find nothing in the act under which the consolidation was effected which prescribes the term of corporate existence of the consolidated company, or authorizes the companies entering- into the consolidation to fix the period of corporate life by agreement between themselves, as was attempted in this case. Our attention is not drawn to any other statute which prescribes the period of corporate existence of the consolidated company, or extends its corporate life with respect to that part of its line and route formerly owned by the other companies, beyond the periods of corporate existence prescribed by their respective charters. The plaintiff, however, continued to exercise the rights, privileges' and franchises which it acquired from the Hudson Eiver Eailroad Company, including the privileges of occupying and using the avenues and streets in question, after the expiration of the period prescribed for the corporate existence of that company, under a claim of right, based on the consolidation, on the theory that such rights, privileges and franchises were continued for the corporate existence of the consolidated company as prescribed in said agreement which corrésponded approximately with the corporate life of the other constituent company which was merged in the consolidated company; and, so far as appears, its rights as thus asserted. were never questioned by the sovereign -power of the State and have been acquiesced in thereby. In exercising such rights, privileges and franchises it must, therefore, be deemed to be a de facto corporation, and while its rights in this regard are open to question by the people of the State, they cannot, I think, be called in question with respect to public rights by the appellant, which is itself but a creature of the State.
I do not agree with the contention of the learned counsel for the respondent that, aside from the consolidation, the right to use the avenues and streets in question for railroad purposes was granted as á special franchise in perpetuity and would have survived the expiration of the corporate existence of the company to which it was granted, and I think there is abundant authority, particularly in view of the provisions of the charter of the Hudson Eiver Eailroad Company, and of the fact that it was not a street railroad, that such permission was only granted originally for the period of its corporate existence. (Turnpike Co. v. Illinois, 96 U. S. 63 ; People *590v. Chicago Telephone Co., 77 N.E. Rep. 245; Blair v. Chicago, 201 U. S. 400.) I do not regard the decision in People v. O'Brien (111 N. Y. 1) as a controlling authority on this point and I think it is clearly distinguishable on principle. Here the State was authorizing the incorporation of a steam railroad not to transfer passengers from one place in-the city to another, but to, transport passengers and freight from the capital to and from New York city and intermediate points, and instead of fixing a terminus for the railroad company and requiring.it at the outset to obtain a private right of way through the city thereto, it authorized the use of public avenues and streets in a designated part of. the city free o£ charge with the • consent of the local authorities.
In the O'Brien Case (supra) the Legislature had, after the amendment of the Constitution in 1874, by chapter 252 of the Laws of 1884 provided .for a sale at public auction of street railroad franchises and the court held that the franchise to 'use the public streets • for street railroad purposes tlnis duly sold, snrvived.the dissolution of the corporation, before the expiration of the period for which it was created, in the exercise by the Legislature of the power reserved to alter, ame'nd or-repeal charters.
It was, of course, competent for the Legislature to authorize the consolidation of these companies for any period of years, but since it made no provision on the subject, I think it -is extremely doubtful whether by the consolidation the consolidated company was authorized to use the avenues and streets in question for railroad purposes after the'expiration-of the period originally prescribed for the corporate existence of the Hudson River Railroad Company; and even if it was so authorized, still I am of opinion that'the permission of the. Legislature granted to the Hudson River Railroad Company by its charter, with the consent of the municipal authorities, to use the public avenues and streets was a revocable license, and that the continuance of such use now. is subject- to the will of the Legislature, which may repeal or revoke the license under the express power reserved in the charter of the Hudson River Railroad Company, and under its police power as well.' (Illinois Central Railroad v. Illinois, 146 N. Y. 387; American Rapid Tel. Co. v. Hess, 125 N. Y. 641; Davis v.Mayor, etc., 14 id. 506-520; Wabash R. R. Co. v. Defiance, 167 U. S. 88; New York Central *591& H. R. R. R. Co. v. Aldridge, 135 N. Y. 83; Michigan Telephone Co. v. City of Charlotte, 93 Fed. Rep. 11.)
The public avenues and streets are held in trust for the use of the people of the entire State primarily for public travel, and while it was competent for the Legislature to authorize their use by a steam, railroad company, which is not a street use, the grant of such authority must be strictly construed in favor of the public; and it being doubtful, at least, whether it would be competent for the Legislature to make an irrevocable grant to a steam railroad company to use the public- avenues and streets of a great and growing city for steam railroad purposes in perpetuity the permission for such use should be construed as revocable when the use becomes inconsistent with the use of the avenues and streets, for their primary purposes of public travel. (See Charles River Bridge v. Warren Bridge, 11 Pet. 420; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87; Syracuse Water Co. v. City of Syracuse, 116 id. 167 East Ohio Gas Co. v. City of Akron, 81 Ohio St. 33 ; Cleveland Electric R. Co. v. Cleveland, 204 U. S. 116 ; State v. Minnesota T. R. Co., 80 Minn. 108.) It may we.ll be that in 1846, when the Hudson River Railroad Company was incorporated, the use of the avenues and streets in question for their primary purposes was not such that human life and property would be seriously endangered,, or that the public would be seriously endangered, or that the public would be seriously inconvenienced, by permitting the use thereof for railroad purposes also, which at that time, it may be assumed, were quite limited ; but it is not, I think, reasonable to attribute to the Legislature an intent to permit the railroad company, with its increasing business, to continue the use of the avenues and streets in jierpetnity, and when, therefore, in the judgment of the Legislature the interests of the public safety and convenience require that the railroad company shall no longer use the avenues and streets as a means of reaching its terminus, I think it is entirely competent for the Legislature to repeal or revoke the permit and to require the railroad company, under its authority to purchase by private grant or to exercise the right of eminent domain, to obtain a right of way to its terminus over private property, or to consent, if that be necessary, to a change of location of the railroad company’s terminus. If the license to use the avenues *592and streets still continues, it is also competent for the Legislature, under its police power, instead of repealing or revoking the' license, to prescribe a plan for the elevation of the tracks above, or the lowering of the tracks below the surface of the avenues and streets, and to require the railroad company to conform with such plan at its own expense, or if it deems that justice so requires to provide for a division of the expense between the municipality and the railroad company, or to delegate this authority to the municipality. (See American Rapid Tel. Co. v. Hess, supra; Chicago, Burlington & Quincy Railway v. Drainage Comrs., 200 U. S. 561; Chicago, Burlington, etc., Railroad v. Chicago, 166 id. 226 ; New Orleans Gas Co. v. Drainage Commission, 197 id. 453; New York & N. E. R. R. Co. v. Bristol, 151 id. 556 ; People ex rel. City of Geneva v. G. W., etc., Traction Co., 112 App. Div. 581; affd., 186 N. Y. 516.; Delaware, L. & W. R. R. Co. v. City of Buffalo, 158 id. 266.)
I am of opinion, however,, that the authority in these' matters rests with the Legislature and not with the municipality, and that, the municipal authorities were, therefore, properly enjoined from taking the law into their own hands and attempting to oust the railroad company from the use of the avenues and streets on the theory that such use has become a public nuisance.
Jndgment affirmed, with costs.