In re Mayor of New York

Per Curiam.

It would appear, from the discussion in regard to this question, that the position of the railroad companies is that simply because a route has been laid over a person’s lands the owner has no power to sell. We think that, until the land has been actually appropriated, an owner has the right to sell, and, until that has occurred, the legislature has the power to compel a sale by the owner for a public use. In both cases it is necessarily subject to vested rights which may have been acquired by preliminary proceedings, which are to culminate in the acquirement of the title. As to railroads which have been constructed, there is no question as to their lands, being already taken. These lands cannot be withdrawn from the public railroad use without specific legislation on the subject; but where no lands have been acquired, and the rights are inchoate, the owner may sell, subject to the execution of the act as against his grantee. So a public use may be authorized, and the lands taken and paid for as an ordinary grantee might take and pay for them, subject to the execution of the original act,—that is, if the legislature intended such use to remain unimpaired. If it did not, the city takes absolutely for a public use; if it did, the city will have to yield the property reserved by implication. This would be a natural solution on the part of the legislature, where large blocks of land are involved, small parts of which are impressed witli one use and the rest with another; there being necessarily great difficulty in specifying these small parcels in the act itself. We think, therefore, that the proper disposition would be to confirm the report, subject to the rights of those railroads, if any exist, to acquire title to the lands, as against the city, embraced within their proposed route. If they have a right to so acquire they have it preserved; and that disposes of this whole question equitably, as between the parties, without impairing any vested rights acquired, and protecting the rights of the owners as against rights which may be claimed to exist, and which may finally .appear never to have existed.