The opinion
Allen, J.,
concurs substantially in the opinión of Judge Earl, and in the result, and was of the opinion that unless the statutes under which the petitioning corporation claimed to exercise its privileges, did make provision for compensation to individuals for every property right and interest, whether corporeal or incorporeal, which would be invaded or appropriated, in the construction and operation of the railway, they could not be sustained. But he was of the opinion that the several acts, as a whole, did make ample provision for such compensation, and that every property right of individuals, including whatever right or interest, by way of easement, appurtenant to these lands or otherwise owners of lots abutting on the streets, have, in such streets, as well those the fee of which is in the city, under the laws of 1813, as the other streets, must, under the Constitution and the statutes, under which these proceedings are had, be compensated for.
He expressed no opinion as to the rights existing in the owners of abutting lands in either class of streets, or to any easements therein other than such as are common to the public, but regarded that question, as well as the measure of damages, if any, to which such property owners would be entitled, especially as to the property rights in the streets, the fee of which is in the city, as open questions, not having been passed upon by the courts, or considered in any case in which the questions were involved.
Subdivision 5 of section 26 of chapter 606 of the laws of 1875, can have full effect without extending its operation to individual rights in the streets, or easements therein, and applying its provisions to the rights of the public. If it goes farther and authorizes the measure of private rights of property of any kind, and the appropriation thereof by the corporations mentioned, without compensation, it is unconstitutional, and therefore void.
Church, Ch. J., concurs with Earl, J.; Miller, J., concurs in result.
Eolger, J., dissents.
*361 Rapallo and Andrews, JJ., concur in the opinion of Earl, J., except in that part which holds that the act makes provision for compensation to the owners of lands abutting on streets in the city of New York, and on the ground that no sufficient provision is made for such compensation, they dissent.
Order affirmed.