MATTER OF CITY OF NEW YORK (SARATOGA AVE.)

CHASE, J.

In considering the question submitted to this court it is necessary first to determine whether the appellant is now holding the lands in controversy for a public use. It acquired title thereto by purchase years before this proceeding was commenced.

When a public corporation having public obligations with power to acquire property by eminent domain acquires the same by purchase for the purpose of carrying out such obligations, it can hold it for such public use with the same right of priority therein that it would have had if it had acquired it pursuant to the provisions of the Code of Civil Procedure relating to condemnation. (Lewis on Eminent Domain [3d ed.], sec. 443.)

The appellant has for years used the lands in question on which to maintain its car barns, car tracks and a storage yard for trolley cars. The lands are contiguous to its main tracks on which its franchises are exercised. Its use as such has been continuous and immediately connected with its business as a street surface railroad corporation. Such use is necessary in running and operating its railroad as more specifically stated in the findings quoted in the statement of facts herewith.

When lands are used in immediate and necessary connection with a public trust by a public corporation the courts recognize that they are held for a public use or purpose. ( Matter of N.Y. H.R.R. Co. v. Kip, 46 N.Y. 546; Matter of Mayor, etc., of N., Y., 52 Misc. Rep. 598; affd., 135 App. Div. 912; 198 N.Y. 606; Matter of N.Y.C. H.R.R.R. Co., 77 N.Y. 248; State v. Commissioners of Mansfield, 23 N.J. Law 510.)

It is settled that a general grant of power to condemn lands does not extend to lands which have already been devoted to a public use. ( Matter of City of New York [ Newport Avenue], 218 N.Y. 274; Matter of Mayor, supra; N.Y.C. H.R.R.R. Co. v. City of Buffalo, 200 N.Y. 113.)

To reach such lands the grant of power must be specific. ( Matter of City of New York [ Newport Avenue], supra.)

There is no such specific grant of power in chapter 670 of the Laws of 1869 nor by the amendments thereto in 1872 (Chapter 331) and 1874 (Chapter 581), nor by sections 438-443 and 970, 971 of the Greater New York charter. ( Matter of City of New York [ Newport Avenue], supra. See opinion of CRANE, J., in S.C., 77 Misc. Rep. 250; adopted in S.C., 171 App. Div. 928.)

The answer to the question submitted to this court depends, therefore, upon whether by the survey made by the commissioners appointed pursuant to chapter 670 of the Laws of 1869 and the filing of the map by them, the town of Flatlands and its successors acquired a right and interest in the lands in controversy superior to that of all other persons therein and by reason of which the acquisition of said lands and the use of them by the railroad company on which to maintain its car barn and storage tracks has always been and now is subordinate to the right of the town of Flatlands and its successors to take the same for street purposes.

It appears by the title of chapter 670 of the Laws of 1869 that it was enacted for the purpose of laying out " a plan for roads and streets in the towns of Kings county." It does not purport to be an act to lay out roads and streets.

It appointed the then present (1869) supervisors of the towns of New Lots, Flatbush, Flatlands, New Utrecht and Gravesend in said county and the chairman of the board of supervisors of said county commissioners as therein provided. (Section 1.) They were directed to appoint a competent surveyor to make and execute all requisite surveys and maps under their direction. (Section 3.) They were expressly directed to "plan and lay out streets, roads and avenues in the said towns, conforming to the avenues and streets and plan of the city of Brooklyn, as now terminated at the city line, as nearly as may be practicable and judicious." They were further directed to have a map made thereof and "file the same, when completed, in the office of the clerk of Kings county," and "place suitable monuments to indicate the several localities." (Section 4.) The purpose and effect of such survey and map are stated in section 5 of the act which is as follows:

"The said commissioners, surveyors or assistants, may enter, in the day time, into and upon any lands and premises which they shall deem necessary for the purposes aforesaid. They shall have exclusive power to lay out streets, avenues and public places, of such width, extent, and direction as they shall decide, and after the passage of this act, until the adoption of such permanent plan, no person or persons, or officers, shall lay out streets or roads in said towns, without the consent of said commissioners first obtained, except in cases where streets, avenues or roads have been or shall be authorized by special acts of the Legislature, in which cases such acts shall have full power and effect, anything in this act to the contrary notwithstanding. After the establishment or adoption of such permanent plan, no street or avenue shall be laid out in said towns, or either of them, except in accordance with said plan so adopted, and all streets or avenues afterwards opened, widened or improved, shall be made to conform to such permanent plan and the lines thereof. If any buildings shall be erected on the line of any avenue or street, as laid out on said plan after the filing of said map, no compensation shall be paid to the owner thereof on the opening of said street."

The act does not include any direction or authority to the commissioners or others to institute a proceeding to acquire title of any kind to the lands included within the roads and streets to be shown on the map. It does not provide an efficient step toward an appropriation of the lands. The only provision of the act directly affecting the several towns named therein and the inhabitants thereof, is, that after the adoption of the permanent plan "no street or avenue shall be laid out in said towns or either of them except in accordance with said plan so adopted."

It does not purport to open any street or highway or dedicate any land to street or highway purposes or direct when, if ever, the same shall be opened and used as a street or highway.

The act is intended, as the title expressly states, to provide a plan for future roads and streets in the towns of Kings county and prevent the laying out of roads and streets except in accord with such systematic and well-considered purpose. The act does not purport to do more. It does not take any right, title or interest from the owner of the property included within the roads and streets as shown on the map. The plan has become subject to change (Greater New York Charter [L. 1901, ch. 466], section 442), but otherwise all authority under the act of 1869 was exercised when the map was filed. The roads and streets shown thereon cannot be actually taken for public use by the municipality without the institution of a new and independent proceeding. Such proceeding may not be commenced in nine hundred and ninety-nine years or it may never be commenced.

The act falls far short of dedicating the lands to public use. If the provisions of the act and the action of the commissioners thereunder can be construed to prevent the owner of property without limit of time from conveying an unincumbered title thereto it takes private property without compensation and falls within the constitutional prohibition. ( People ex rel. N.Y.C H.R.R.R. Co. v. Priest, 206 N.Y. 274, 288; Ingersol Nassau Elec. R.R. Co., 157 N.Y. 453, 463; Wyneha v. People, 13 N.Y. 378; Bertholf v. O'Reilly, 74 N. 509.) If the act is construed simply as a plan to aid in establishing a uniform system of roads and streets the same may from time to time be taken and dedica to public use it serves a useful purpose and does not violate any constitutional provision. It should be construed.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, and the question certified should be answered in the negative.

HISCOCK, Ch. J., CUDDEBACK, HOGAN, McLAUGHI and CRANE, JJ., concur; COLLIN, J., not sitting.

Order reversed, etc.