The Chancellor.
It is pretty evident in this case that an assessment has been made on the lands of the complainants, which must probably produce a total sacrifice of the property assessed, unless they can obtain relief, either in this court or by legislative interference. Judging from the facts before me, I cannot see how it was possible for the commissioners of estimate and assessment, to have come to the conclusion that the lands assessed could be benefitted to the amount of about $14,000 by the contemplated improvement f even upon the principles on which they proceeded relative to the Bedford road as a public highway, already laid out and established. As I understand the case, the assessment limits only included of the complainant’s lands 107 feet on each side of the Bedford road as originally laid out by the turnpike commissioners, and extending in length on that road about 968 feet. This would give to the complainants 76 lots of 25 feet front, and 107 feet deep, upon a street of 66 feet in width. And if the contemplated improvement was made, they would have the same number of lots of 100 feet in depth, upon an 80 foot street. These lots,at the valuation fixed upon them by the second answer of the defendants, at the time of the assessment when lands were the highest, were worth $250 ; making the sum of $19,000 for the lands assessed. And yet it, is supposed these lots will be benefitted by the widening and extending of this street $139,31 ; or about three fourths of their then estimated value, and nearly their full value one year thereafter, when the second answer was put in. It is possible, that some further benefits might accrue to these lots, by the extension of Bedford road beyond where it was already opened four rods wide, in addition to the benefit of having it fourteen feet broader in front of the lots assessed. But there is much reason to believe that the [206]*206guardian ad litem who was appointed to take care of the rights of these infants, and who was himself one of the applicants for the proposed improvement, has under the influence of mental hallucination, or otherwise, suffered their property to be assessed to about its full value, and probably much more than it is now worth; as a supposed benefit which that property was to receive from the contemplated improvement. If the whole proceedings, however, have been regular, and the commissioners of estimate and assessment have merely erred in judgment, I think this court has no jurisdiction to correct their error, or to give relief to the complainants. For there is no allegation of fraud or collusion on their part, nor on the part of the guardian ad litem who was appointed in the mode prescribed by law to protect the rights of the complainants on that assessment, and to appeal from the decision of the commissioners, if he believed they had done injustice to these infants.
The first objection to the regularity of the assessment is that the commissioners of estimate and assessment have assumed that the turnpike road was not only regularly laid out, but that it was already the property of the public, so that the complainants were entitled to no compensation therefor. In this I think the commissioners were clearly under a mistake. For the purpose of this decision,!shall take it for granted that the turnpike was properly laid out, and that the damages of the complainants for that part of their farm which was taken for the use of the corporation were legally and constitutionally assessed, pursuant to the provisions of the general turnpike act of 1807. Still that act did not vest the title of the land in the turnpike company, even for the purposes of the road during the existence of the charter, until the actual payment of the damages which had been so assessed. The language of the statute is, that the turnpike corporation, upon paying to the owners of the land the sum assessed and awarded by the appraisers in their inquisition, shall and may have and hold the lands to them and their successors and assigns, &c. (1 R. L. of 1813, § 3, p. 231.) It is true, the statute [207]*207does, by an implication, authorize the turnpike company to enter upon the land for the purpose of making their road thereon, if there is no person living on the land who is authorized to receive the damages, unless such damages shall be lawfully demanded. The title to the land, however, is still in the original owner ; and the moment he demands the payment of the damages from the proper officers of the company, and the same are not paid, he may bring an action to recover the possession of the land. It is perfectly clear, therefore, that the complainants before they could be divested of their title to so much of their farm as was included in the old Bedford road, were entitled to the payment of at least the amount which was awarded to them by the appraisers in 1828. And the opinion of Ch. J. Nelson appears to be that they were entitled also to the benefit of the contingent right to the reversion in the land, in case of the dissolution of the corporation, or of the abandonment of the road. (See Hooker v. The Utica and Minden Turnpike Company, 12 Wendell’s Rep. 371.) Whether the turnpike company was in existence at the time the commissioners of estimate and assessment made their rep ort in the present case, does not distinctly appear from the pleadings ; but the legal presumption is that it was, as I have not found any statute dissolving that corporation, or authorizing it to abandon the road. It is clear, however, that if that corporation should be legally dissolved without having paid the amount awarded to the complainants for damages, the legal title to that part of the Bedford road which is in question here, would belong absolutely to the complainants; and that such title could not be divested, for the purposes of this public street, without paying them the full value of the land, either in money or in the benefits which would thereby accrue to them by the increased value of their adjoining lands. It does not distinctly appear in this case whether the petition to the common council for the improvement, and the resolution of the city corporation adopting the same, actually contemplated the taking of the lands included within the limits of the turnpike, as well as [208]*208the two narrow strips of each side of the same, for the use of the corporation’ as a public street. If the former was the case, then the confirmation of the report was irregular, and may still be opened ; as the commissioners have not in form appraised the damages to which the complainants, as the owners of the original site of the Bedford road through their farm, are entitled. And as I understand the recent decision of the supreme court In the matter of Anthony-street, (20 Wend. Rep. 618,) there cannot be an absolute confirmation of the report of commissioners of estimate and assessment, so as to give any vested rights under the same, until the damages for all of the lands taken for the proposed improvement have been ascertained and settled, and are properly assessed upon the owners of those lands which will be benefit ted by the improvement.
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The Chancellor.
It is pretty evident in this case that an assessment has been made on the lands of the complainants, which must probably produce a total sacrifice of the property assessed, unless they can obtain relief, either in this court or by legislative interference. Judging from the facts before me, I cannot see how it was possible for the commissioners of estimate and assessment, to have come to the conclusion that the lands assessed could be benefitted to the amount of about $14,000 by the contemplated improvement f even upon the principles on which they proceeded relative to the Bedford road as a public highway, already laid out and established. As I understand the case, the assessment limits only included of the complainant’s lands 107 feet on each side of the Bedford road as originally laid out by the turnpike commissioners, and extending in length on that road about 968 feet. This would give to the complainants 76 lots of 25 feet front, and 107 feet deep, upon a street of 66 feet in width. And if the contemplated improvement was made, they would have the same number of lots of 100 feet in depth, upon an 80 foot street. These lots,at the valuation fixed upon them by the second answer of the defendants, at the time of the assessment when lands were the highest, were worth $250 ; making the sum of $19,000 for the lands assessed. And yet it, is supposed these lots will be benefitted by the widening and extending of this street $139,31 ; or about three fourths of their then estimated value, and nearly their full value one year thereafter, when the second answer was put in. It is possible, that some further benefits might accrue to these lots, by the extension of Bedford road beyond where it was already opened four rods wide, in addition to the benefit of having it fourteen feet broader in front of the lots assessed. But there is much reason to believe that the [206]*206guardian ad litem who was appointed to take care of the rights of these infants, and who was himself one of the applicants for the proposed improvement, has under the influence of mental hallucination, or otherwise, suffered their property to be assessed to about its full value, and probably much more than it is now worth; as a supposed benefit which that property was to receive from the contemplated improvement. If the whole proceedings, however, have been regular, and the commissioners of estimate and assessment have merely erred in judgment, I think this court has no jurisdiction to correct their error, or to give relief to the complainants. For there is no allegation of fraud or collusion on their part, nor on the part of the guardian ad litem who was appointed in the mode prescribed by law to protect the rights of the complainants on that assessment, and to appeal from the decision of the commissioners, if he believed they had done injustice to these infants.
The first objection to the regularity of the assessment is that the commissioners of estimate and assessment have assumed that the turnpike road was not only regularly laid out, but that it was already the property of the public, so that the complainants were entitled to no compensation therefor. In this I think the commissioners were clearly under a mistake. For the purpose of this decision,!shall take it for granted that the turnpike was properly laid out, and that the damages of the complainants for that part of their farm which was taken for the use of the corporation were legally and constitutionally assessed, pursuant to the provisions of the general turnpike act of 1807. Still that act did not vest the title of the land in the turnpike company, even for the purposes of the road during the existence of the charter, until the actual payment of the damages which had been so assessed. The language of the statute is, that the turnpike corporation, upon paying to the owners of the land the sum assessed and awarded by the appraisers in their inquisition, shall and may have and hold the lands to them and their successors and assigns, &c. (1 R. L. of 1813, § 3, p. 231.) It is true, the statute [207]*207does, by an implication, authorize the turnpike company to enter upon the land for the purpose of making their road thereon, if there is no person living on the land who is authorized to receive the damages, unless such damages shall be lawfully demanded. The title to the land, however, is still in the original owner ; and the moment he demands the payment of the damages from the proper officers of the company, and the same are not paid, he may bring an action to recover the possession of the land. It is perfectly clear, therefore, that the complainants before they could be divested of their title to so much of their farm as was included in the old Bedford road, were entitled to the payment of at least the amount which was awarded to them by the appraisers in 1828. And the opinion of Ch. J. Nelson appears to be that they were entitled also to the benefit of the contingent right to the reversion in the land, in case of the dissolution of the corporation, or of the abandonment of the road. (See Hooker v. The Utica and Minden Turnpike Company, 12 Wendell’s Rep. 371.) Whether the turnpike company was in existence at the time the commissioners of estimate and assessment made their rep ort in the present case, does not distinctly appear from the pleadings ; but the legal presumption is that it was, as I have not found any statute dissolving that corporation, or authorizing it to abandon the road. It is clear, however, that if that corporation should be legally dissolved without having paid the amount awarded to the complainants for damages, the legal title to that part of the Bedford road which is in question here, would belong absolutely to the complainants; and that such title could not be divested, for the purposes of this public street, without paying them the full value of the land, either in money or in the benefits which would thereby accrue to them by the increased value of their adjoining lands. It does not distinctly appear in this case whether the petition to the common council for the improvement, and the resolution of the city corporation adopting the same, actually contemplated the taking of the lands included within the limits of the turnpike, as well as [208]*208the two narrow strips of each side of the same, for the use of the corporation’ as a public street. If the former was the case, then the confirmation of the report was irregular, and may still be opened ; as the commissioners have not in form appraised the damages to which the complainants, as the owners of the original site of the Bedford road through their farm, are entitled. And as I understand the recent decision of the supreme court In the matter of Anthony-street, (20 Wend. Rep. 618,) there cannot be an absolute confirmation of the report of commissioners of estimate and assessment, so as to give any vested rights under the same, until the damages for all of the lands taken for the proposed improvement have been ascertained and settled, and are properly assessed upon the owners of those lands which will be benefit ted by the improvement. If this is the correct construction of the statute, and the resolution of the mayor and common council actually contemplates the taking of the whole of the old Bedford road for the purposes of this improvement, they ought not to be permitted to proceed and enforce this assessment against the complainants personally, by virtue of the distress warrant, or by a sale of their lands which have been assessed, until the proper steps have been taken to divest their title to the whole of the lands which are to be taken for the improvement, by an assessment of the damages and an offset of the same against the supposed benefit of their adjacent lands.
I think, however, there is a more conclusive objection to the proceedings of the defendants, in this case ; and that is, that the mayor and common council had no legal authority to lay out and open this new street through the lands of the complainants, in one of the new wards of the city, subsequent to August, 1835 ; until the same had been authorized by the commissioners appointed under the act of the 23d of April in that year, authorizing the appointment of commissioners to lay out streets, avenues and squares in the city of Brooklyn. That act, which took effect on the first of September after its passage, gives to the commissioners, to be appointed by the governor on the [209]*209application of the mayor and common council, the exclusive power to lay out streets, avenues and public squares within that part of the city comprising the sixth, seventh, eighth and ninth wards, and to direct the closing of any streets, roads, highways, lanes, avenues or alleys which had not been theretofore approved of by the mayor and common council. (Laws of 1835, p. 136, § 4.) The previous act of the same day amending the charter of the city of Brooklyn, which went into effect immediately, must be so construed as not to conflict with the provisions of the act appointing these commissioners to make a permanent plan of this part of the city. It must therefore be construed to apply to that part of the city lying within the first five wards, and which was originally comprised within the bounds of the village corporation ; or at least, to such streets as they should think proper to lay out according to a settled plan, in the four other wards, previous to the time when the act for the appointment of commissioners should take effect. Certainly it could not have been the intention of the legislature that two classes of officers should have the power to lay out streets and avenues in that part of the city during the same period, and that each should proceed according to a settled plan of their own. Neither could the mayor and common council continue their jurisdiction over the subject, (if their power extended to these four wards previous to the first of September,) by their neglect to apply to the governor for the appointment of commissioners until after this street was laid out; if such was in fact the case. The duty for which the commissioners were to be appointed was in its nature exclusive ; independent of the express provisions of the act upon that subject. And until they had been appointed and had authorized the opening of the street now under consideration, I am satisfied the mayor and common council had no authority, after the first of September, 1835, to proceed by resolution to open the same, and to have commissioners of estimate and assessment appointed pursuant to the directions of the act of 1833.
[210]*210The vice chancellor was therefore authorized to interfere by injunction to restrain the defendants, under color of authority, from proceeding in an illegal act, which must necessarily cast a cloud upon the complainant’s title ; and to set aside these unauthorized proceedings which had already taken place. (Oakley v. The Trustees of Williamsburg, 6 Paige’s Rep. 262. Pettit v. Shepherd, 5 Idem, 501.) For these reasons, the order appealed from must he affirmed with costs.