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The People agt. Long Island Railroad Company.

completion of said new road between Jamaica and Hunters Point.” A reference to the act of 1860, just spoken of, will show the significance of this language, and develop its full meaning. That statute provides for the assignment of the assessment, levied under the law of 1859, to the company, with power to it to collect the same, in lieu of the payment to it of the money itself, upon, among other conditions, the company's “agreeing to discontinue the use of steam within the limits of said city upon completion of their new road from Jamaica to Hunters Point." It was in execution of this clause in the law of 1860 that the language in the agreement was used. It provided for the discontinuance of a present franchise only, and any attempt to give it a wider meaning is a straining of the words beyond their natural and, as it seems to me, their plain meaning.

Having reached the conclusion that no agreement has been made either with the people, the city of Brooklyn or the owners of the property in the district taxed under the act of 1859, which will justify the maintenance of this action, it is proper

also to state that whilst the existence of such an obligation has been discussed its validity, if made, is not conceded. Very clearly, as has been shown elsewhere, a legislature cannot, in a matter of public policy, bind its successors, and a similar principle applies to corporations created for the public good. Railroad companies are formed to promote the general convenience, and to serve the general interests of communities. The convenience and interests of the general public are shifting and changing, and as a railroad company is under a moral obligation at least, if not a legal one, to serve the public to the extent of its ability, it cannot so hamper itself by an agreement, as to make impossible the fulfillment by it of one of the most important objects of its creation. It is unnecessary to consider whether, if a corporation agrees not to do in the future something which the law will permit, and the general public convenience may then require to be done, and although it has received a consideration for its agreement, it

The People agt. Long Island Railroad Company.

still does what it agreed it would not do, an action will lie for damages, or to recover the consideration paid, as that point is not involved in this action. The precise question is, can a railroad corporation, by contract, when no statute authorizes it so to do, bind itself to a particular mode of propelling power, regardless of the interests of the people, which may require it to adopt a different one? If it can, then progress may be checked, and if such a principle had in adoption been coeval with the invention of the railroad, a continent might not now be spanned, and all the dwellers of a country greater in extent than any on earth, might not then have been, as they now are, neighbors, by means of those roadways of iron and steel, the distance over which steam has so lessened. It is apparently easy to point out cases of individual hardship by the proximity of a railroad to a dwelling or place of business. Such instances may be found in the open country, as well as in the densely populated metropolis, but arguments based thereon, generally more plausible than sound, cannot establish a principle, which will enable the opposers of right progress to force by contract apon an infant enterprise barriers thereto, from which escape shall be impossible, and the attempted fulfillment of what may be the highest needs of its creation useless.

The remaining questions in the cause are upon the validity of the law (chap. 187 of Laws of 1876) under which the defendants claim the right to use steam upon the avenue, the language of which has been hereinbefore given. To that act various objections founded upon constitutional provisions are made, which will now be considered :

First. It is contended that such statute is obnoxious to section 1 of article 14 of the Constitution of the United States, declaring, among other things, that no state can“ deprive any person of life, liberty or property without due process of law," and also to section 6 of article 1 of the Constitution of this state, which likewise provides that “no person The People agt. Long Island Railroad Company.



be deprived of life, liberty or property without due process of law."

To this objection it may be answered, that assuming it to be true that some "person ” has, under the color of that act, had his “property” taken, how does that fact justify this suit by the people? If any individual is unlawfully deprived of his property by another, the remedy is by an action in his own behalf; and when the separate property of several different individuals has been taken wrongfully, by either a natural or an artificial being, each one must seek redress for his own wrong by his own suit. There is no rule of law or practice which enables different parties, whose several and separate properties have been taken, to bring one action in the name of the people, in which one suit, their several and distinct rights depending, perhaps, upon evidence and principles which are unlike, may be all settled and adjusted. We are entirely unable then, to discover how the provisions of either the federal or state Constitution can be successfully invoked to aid this action, if the fact was that property of individuals would be taken thereunder without compensation. But the act was neither intended to, nor does it accomplish such a purpose. It was designed to confer a privilege, without which, perhaps, the use of steam might have been unlawful. The people, having by an express law conferred the right to use steam upon the avenue, cannot, in an action in which they are plaintiffs, claim in their own behalf that what they have authorized is a public nuisance (Harris agt. Thompson, 9 Barbour, 350 ; see opinion of HAND, J., on pages 363, 364, 365, 366).

It is also urged, however, that the general public has, if the law is valid, lost the right to use the whole of Atlantic avenue as a street, as it existed at the time the act of 1876 was passed, and that such right of use constituted a property in the public, of which it is deprived without compensation, and for that reason such law is unconstitutional. That argument is equally nnsound. The constitutional provisions do not reach public

The People agt. Long Island Railroad Company.

rights or public property. They were designed to protect individuals and not the state. It is a “personwho cannot be deprived “ of

property without due process of law.” Whenever all individual ownership of, or title in property has been extinguished, and its right for use by the general public acquired, there is no contract express or implied with any one, that the mode of use which was first adopted shall always continue to the exclusion of any other. If, for example, the fee of the land used for a street has become vested in a municipality for public uses, the legislature can regulate such use, and permit the enjoyment thereon of new and other modes of transit in addition to those first adopted (People agt. Kerr, 27 N. Y., 188; see pages 192, 194, 195, 204; Killinger agt. Forty-second street R. R. Co., 50 N. Y., 206). And when property has been acquired for public use, there is no obligation to hold it for such a purpose, and it can by legislative permission be sold to private parties, “ notwithstanding the fact that such abandonment and sale will lessen the value of surrounding property, which has been assessed for the benefit and advantage to it from the maintenance of

There is no contract in such cases with the owner of such adjacent property to maintain the use " (The Brooklyn Park Commissioners agt. Armstrong, 45 N. Y., 234). These principles in no wise infringe upon that on which Wager agt. Troy Union Railroad Company (25 N. Y., 526), was decided. It is not now held, that an easement acquired for the purposes of an ordinary highway will justify a railroad company in the occupation of such highway for railroad purposes, without compensation to the owners of the land. If any such cause of action, however, exists in any one's favor, he must enforce it for himself. The right, as against the original owners of the soil, to use Atlantic avenue for a railroad has, for the purposes of this action, been assumed, because if it does not exist, the remedy is not by this suit, and also because such right has been expressly adjudged to have been acquired (see cases cited in beginning of opinion); and a user under a claim thereof

such use.

The People agt. Long Island Railroad Company.

has been enjoyed so many years anterior to this action, that its discussion in a suit, which cannot remedy the alleged wrong, would be unprofitable. What is claimed is, that when as against the owners of the land, the right to operate a railroad has been acquired, the mode of such use, whether by steam or otherwise, is a matter within legislative control, and in regulating such use, no right of property is infringed upon, to which the above cited provisions from the federal and our state Constitutions are applicable.

It was also earnestly argued by the counsel of the plaintiffs that, by the action had under the act of 1859 and “the payment of the $130,000, the public acquired the franchise for the public use that the railway companies theretofore had," and that now the public has an interest therein which the state cannot confer“ upon these private corporations." Who the "public" are, which “ acquire the franchise for the public use," we are not informed. If the city of Brooklyn was the acquirer, or a number of individuals so great that they can be called “the public,” are the persons so styled, and are the successors to those rights, then it or they should enforce them. If the whole people are thereby intended, it is reasonably safe to say that the state can, through its legislature, bestow its property as it deems best for the public good, unless restrained by the fundamental law. The difficulty with the argument, however, is that there has been no purchase or transfer of a right at all, but simply the extinguishment or surrender of one. There was, as has been herein before shown, no covenant nor agreement as to the future. If that was intended, such intention has never been expressed in a statute, nor embodied in any agreement, of which the plaintiffs or those for whose benefit this action is brought can avail themselves.

Second. But it is urged that the act is unconstitutional under section 18 of article 3 of the Constitution, which prohibits the legislature from passing “a private or local bill * *

granting to any corporation, association or individual the right to lay down railroad tracks ;” or “granting to

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