Supreme Court, December, 1914. [Vol. 88. and as the parcel has a river frontage a fire tug is enabled to lie alongside and pump water into the main. It is thus manifest that the plan, so far as this change is concerned, is not only proper, but a necessary one. It might be noted that by the provisions of the contract, inasmuch as the city of Buffalo was the owner of the fee of Washington street, the value of the portion of the street taken for terminal purposes was to be appraised by a commission as provided by section seven of the act, and this triangular shaped parcel to be conveyed by the railroad to the city was also to be appraised by the same commission. This has been done. The cost of constructing the new main and intakes was to be borne entirely by the railroad company. In addition to the propriety and necessity of providing a place for the water main and intakes for the fire lines and their operation, the acquisition by the city operates to widen Main street at its lower terminus and to broaden the approach to the passenger station to be erected on the easterly side of Main street. During the summer season, many excursionists visit the foot of Main street to take boats running from the dock at the foot of the street, so that, independent of the question of water mains and intakes, the deeding of this triangular parcel to the city serves a useful purpose in widening the public approaches at this point. We are of the opinion that the terminal commission acted clearly within the authority conferred upon it by providing in the plans and contract for the relocation. of the fire-tug slip, and also for relocating the water mains and intakes from Washington street to the triangular parcel in question. We think the statute anticipated and provided for contingencies such as were presented and have been briefly outlined. By the first section of the act the commission was Misc.] Supreme Court, December, 1914. directed to adopt plans requiring the railroad to make necessary changes in the location of station and tracks, and also requiring "the city to make such changes in the location of the streets, alleys or lands owned by the said city" as would secure adequate terminal facilities. By section 3 the commission was required to make a report in writing stating the plan adopted, etc., and "the change in the location or grades of the streets, alleys or lands owned by the city," etc. 66 By section 5 the commission was authorized to agree upon behalf of said city with any company for the change of location or grade of any street, alley or public place which may be necessary, and may agree with said companies for the exchange or sale of lands owned by said city at a price therefor to be determined. as hereinafter provided." Section 7 provides for an appraisal to determine the value of lands to be taken or exchanged and prescribes the mode of procedure. By section 9 of the act the commissioners "are authorized and empowered to acquire any lands in the city of Buffalo, to close or alter any street, alley or public place, to change in or remove from any such street, alley or public place any gas or water pipes, sewers, conduits or other objects, or change the grade of any streets which they shall decide necessary for the purpose of carrying out the plans and contracts hereby authorized," etc. We are unable to discover, in view of the provisions of these sections, that the commission exceeded its authority in providing, as it did, for the relocation of the fire-tug slip or the relocation of mains and intakes on the triangular parcel in question. In our opinion, the contract is not rendered invalid by including in the plan and contract the provision in Supreme Court, December, 1914. [Vol. 88. reference to the small triangular piece of land on the northeasterly corner of Main and Ohio streets. It appears from the evidence given on the trial that the triangle in question has been a part of Ohio street for upwards of thirty years. By the contract, the city agreed to close Ohio street and deed to the railroads Ohio street as closed. On the other hand the railroad, by section 5 of the contract, specifically included this small triangle as one of the parcels which the railroads agreed to deed to the city. This triangle, by the plans, clearly appears to form a portion of what will be new (or relocated) Ohio street when laid out and opened. It was undoubtedly an oversight and mistake to have included this triangle as one of the parcels to be appraised by the appraisal commission subsequently appointed under section 7 of the act, as provided in the contract. The Hon. Albert Haight was named by this court as the head of that commission, and it was conceded on the trial of this action by the counsel for the city of Buffalo that upon the hearing had before the appraisal commission the error was recognized, and no testimony was offered as the basis of any award. It was properly omitted from consideration on that proceeding. The counsel for the plaintiff, however, was not ready on this trial to make the concession which the city corporation counsel frankly made. Inasmuch as this plaintiff is prosecuting this action as a taxpayer for the alleged benefit and interest of the city, it hardly seems to lie in his mouth to assert the contrary to what the city concedes to be the fact, especially where the corporation counsel, in other respects, is in this action acting in harmony with the plaintiff. Be that as it may, we can see that what appears to be inconsistent provisions in the contract as to this small triangle have operated and can operate to work Misc.] Supreme Court, December, 1914. no wrong to either party. If the contract were to be carried out to the letter it would leave the city and the railroads in exactly the same position as they would be if the contract had been entirely silent as to this small triangle. By the plan adopted by the terminal commission, and by the contract entered into with the railroads, it is provided that certain public streets or portions thereof shall be closed and abandoned as public streets. Among the streets so to be closed are portions of Prime street, Ohio street, and those portions of Washington, Indiana, Illinois, Mississippi, Liberty and Columbia streets, extending from Ohio street and Elk street (which is practically an extension of Ohio street) to Front street, so-called. In the case of all streets where the fee of the street is vested in the city of Buffalo, the contract with the railroads provides for the appraisal of the value of the land embraced within such streets in the manner provided by section 7 of the terminal act; and for such land this city is to be compensated by the railroads. As to the other streets closed, where the fee is not vested in the city, the contract provides for no compensation to be paid to the city. Such are the stub ends of Indiana, Illinois, Mississippi and Columbia streets, and front street, so-called, extending easterly from Main street to a point easterly of Columbia street. It is contended on the part of plaintiff that the city is entitled to compensation for the surrender of the public easements in such of the streets as are to be closed and turned over to the railroad companies, to which the city does not own the fee. In other words, the contention of the plaintiff is that the city of Buffalo owns property rights of value in such streets, and the terminal commission had no right or authority to sur Supreme Court, December, 1914. [Vol. 88. render these rights without the railroads paying for the same, and to do so violated that provision of the Constitution of the state providing: "No county, city, town or village shall hereafter give any money or property to or in aid of any individual, association or corporation." Const., art. VIII, § 10. It becomes important that there should be a clear understanding of what rights the city of Buffalo has in streets where it does not own the fee. We think it may be safely asserted that the city, as such, has no property interest whatever in such streets. Whatever rights to travel or use the streets exist, are rights which belong to the public at large, as distinguished from any right the municipality itself has or had. The construction and maintenance of public highways is primarily one of the great functions of the state, and while their care and maintenance may be committed to the municipality, the right to travel over and use them belongs to the people at large. We speak of the city's streets, but they remain, nevertheless, the state's highways, subject to legislative control. Even where the fee of the street is owned by the municipality, nevertheless the street is, in law, held in trust for the public at large. The property rights of a municipality in public streets have been the subject of judicial decision in a number of well-considered cases in the courts of this state, and it has been held that even the ownership by a municipality of the fee of a street is not property protected by the clause of the Constitution above. quoted. In People v. Kerr, 27 N. Y. 188, the question was distinctly before the Court of Appeals and squarely decided. The city of New York owned the fee of a |