Could any substantial difference be perceived between the present case and that of The People ex reL The Trustees of the Sailors’ Snug Harbor and others v. John Kerr and, others, decided by this court at general term in July last, it might be profitable to give my own views upon the merits-of this controversy.
The question was necessarily before the general term in that case whether the title to the streets was in the corporation of the city of Hew York, and whether the corporation could object, on constitutional grounds, to the laying down a rail road track in the streets of the city by these defendants without compensation therefor being paid to the corporation as owners of the fee, under the authority of an act of the legislature.
That decision, although upholding the title of the city of Hew York to the streets in fee simple in trust for the use of the public as highways, expressly decided that the legislature were clothed with the power of granting to the defendants the right to put down and operate a rail road in the streets of the city without paying any compensation for such *375new nse of the soil of the streets, either to the corporation of the city of New York, or to the owners of lots fronting on the streets.
[New York General Term, November 3, 1862.We think it unprofitable that any further conflict of authority should occur upon this question in courts of the same jurisdiction, and that the parties interested should, if they think proper, invoke the judgment of the court of last resort upon these questions, which have so long occupied the attention of different judges of this court, and have called forth such a diversity of opinions,
The order appealed from should therefore be affirmed, with $10 costs of the appeal to abide the event.
Ingraham, Leonard and Peckham, Justices.]