Misc.] Supreme Court, December, 1914. certain street, over which the legislature had authorized the construction of a surface street railway. The city claimed it was entitled to compensation for the additional burden imposed upon the fee of the street. The court held, after considering the question of the city's ownership, that the municipality's title to the fee of the street was not private property, but was in trust for the people of the entire state, and that the legislature had the right to divert the property to another public use, without compensation to the municipality. The language of the court expressed in its opinion in that case is so illuminating on the subject that we venture to quote at length: "So far as the existing public rights in these streets are concerned, such as the right of passage and travel over them as common highways, a little reflection will show that the legislature has supreme control over them. When no private interests are involved or invaded the legislature may close a highway and relinquish altogether its use by the public, or it may regulate such use or restrict it to peculiar vehicles or to the use of particular motive power. It may change one kind of public use into another, so long as the property continues to be devoted to public use. What belongs to the public may be controlled and disposed of in any way which the public agents see fit. "Whatever may be the quantity or the quality of the estate of the city of New York in its streets, that estate is essentially public and not private property, and the city, in holding it, is the agent and trustee of the public, and not a private owner for profit or emolument. It is not material whether the public, for whom the city is vested with the title, consists of those who may, from time to time, be citizens of New York, although it might, I think, be shown that a trust to Supreme Court, December, 1914. [Vol. 88. keep and maintain a highway is not for the benefit of the inhabitants of the adjacent city alone." Judge Wright, in his opinion in the same case, said: The streets in question are not owned by the corporation of New York. The corporation cannot sell or dispose of them, or devote them to private use. Any and all titles or interest which the city has in them, is held for public use; is public property, and not private or municipal. I am clearly of the opinion, that the city corporation has no property in the streets of a character to be protected by the constitutional limitations upon the right of eminent domain. It is perhaps, unnecessary, in this case, to consider the question, whether in other streets of the city not opened under the act of 1813, the corporation has a property in them to be thus protected; but, if it were, my conclusions would be the same. Whether the fee or ownership of the bed of ancient streets was originally vested in the government, or the land was taken and condemned for public use, under colonial or state acts, upon paying to the proprietors a compensation for the soil or easement, or was voluntarily ceded to the public, it seems plain to me that the corporation has no property in the soil of the streets, to be constitutionally protected against the acts of the State in regulating their use. It cannot be pretended that the absolute title and estate in the lands embraced within the streets, has ever been granted to the corporation from any source. Whatever estate or interest it holds, either conferred by the Dongan charter or by the State, is in trust for the public use. It is not a trustee for the inhabitants of the city alone, but for the whole people. The corporation may exercise the trust, or it may have control over the public streets, or the power of regulating their use, but that is not corporate property, nor has the corporation or any of its corporators Misc.] Supreme Court, December, 1914. a private interest therein, or a right to derive profit therefrom. "The interest in the use of streets being publici juris, the power of governing and regulating such uses is vested in the legislature as the representative of the whole people. It is a part of the governmental or political power of the State, in no way held in subordination to the municipal corporation. * I know of no restraint upon legislative action, unless it can be found in the Constitution. The city corporation, as freeholder of the streets, in trust, for public use as highways, is but an agent of the State. Any control which it exercises over them, or the power of regulating their use, is a mere police or governmental power, delegated by the State, subject to its control and direction, and to be exercised in strict subordination to its will. The corporation, as such, has no franchise in connection with the use of the streets for the transportation of passengers. Whatever power or authority it possesses in respect to the carriage of persons for hire was derived from acts of the State. Legislature, which power may be resumed by the grantor at its pleasure." The case of People v. Kerr, 27 N. Y. 188, has been frequently cited with approval in later decisions. It was so cited in People ex rel. Metropolitan St. R. Co. v. Tax Commissioners, 174 N. Y. 443, where the following language was used: "A highway may be local, but the title thereto is not, for whether a fee or an easement it is held in trust for the people at large, represented by the state, which has control of the streets and of the erections therein." In the case of City of New York v. Rice, 198 N. Y. 128, again citing People v. Kerr, the court said: "The ownership by the city of the fee of the land in the streets is impressed with a trust to keep the same open Supreme Court, December, 1914. [Vol. 88. for use as such. The trust is publici juris, that is for the whole People of the state, and is under the absolute control of the legislature; in which body, as representing the People, is vested power to govern and to regulate the use of the streets. There is no right in the city to use its property therein, as it might corporate property, nor otherwise than as the legislature may authorize, for some public use or benefit." In Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404, the court said in its opinion at page 412: "In The People v. Kerr, one of the cases cited, which was subsequently carried to the Court of Appeals, and is reported in 27 N. Y. 188, the decision was put upon the ground, that the fee of the street, as against the plaintiffs, was held by the corporation of New York city, and that the plaintiffs, other than the people, had no property in the land forming the bed of the street in front of their respective premises, to be protected by the constitutional limitation, upon the right of eminent domain." This doctrine was reaffirmed in Peck v. Schenectady R. Co., 170 N. Y. 298. Another important case is that of Matter of Grade Crossing Commissioners, 66 App. Div. 439, where the Appellate Division held that the city of Buffalo was not entitled to compensation for the taking of the fee of a street owned by the city of Buffalo for use by a railroad in connection with a grade crossing improvement. Presiding Justice Adams, in the course of his opinion, said: “It, therefore, only remains to determine how much consideration shall be given to the contention of the city that it is entitled to recover compensation of the respondent for any injury done to parcels 76 and 77, in consequence of the change of the grade of Hamburg street. "For reasons which we shall proceed to state as Misc.] Supreme Court, December, 1914. briefly as possible, we do not deem this contention well founded. In the first place, it is not in accord with the well recognized principle of law that where the fee of a street is in a municipality, the same is held in trust for public purposes, and the municipality can, therefore, recover no damage either direct or consequential for any new use to which such street may be put, unless the same is authorized by the Legislature." Citing People v. Kerr. It should be borne in mind that, in all the cases above cited, the fee to the land in the street appears to have been vested in the municipality; while in the case now before us for disposition the city of Buffalo makes no claim to the fee of the streets to be closed. As to all streets to be closed, where the fee is vested in the city, the contract attacked expressly provides for compensation by the railroad defendants. It is only where the city does not own the fee that there is provided by the contract a closing of streets without an appraisal and compensation. The only right the public has in such cases is the right to use such street for street purposes, and this right principally is the right to pass over them, and this right is vested, not in the municipality as a corporation, but in the people of the state at large. If any compensation for the closing of such streets were to be made it should go, not to the city, but to the state, or to the people at large, to whom the right belongs, unless the legislature has, by some statute, expressly provided otherwise. It is urged by counsel for the plaintiff, and by the corporation counsel of the city, that the terminal act provides and contemplates that compensation should be made the city for the right to close the streets under discussion, even though the city did not own the fee. We do not so read or understand the act. By section 9 of the act, it is provided: "The com |