Chester, J.
The state by this action seeks to enjoin the defendant, The Adirondack Railway Company, from taldng or continuing condemnation proceedings to procure a right of way for a [86]*86railroad across what is known as township 15, which lies in the counties of Warren, Essex and Hamilton and which is wholly within the Adirondack park and is a part of the forest preserve.
While the state was conducting negotiations for the purchase of township 15 this railway company procured from the Special Term an injunction restraining the owners of the township from conveying it to the state, except subject to the right of way claimed by the company. This claim was based upon the filing by the company on September 18, 1891, of a map and profile of its proposed right of way over such township in the clerks’ offices in the counties of Warren, Essex and Hamilton, under section 6 of the Railroad Law and the service of notices upon the property owners. From an order continuing that injunction during the pendency of the action, an appeal was taken to the Appellate Division in the third department, where the order was reversed and the injunction vacated. Adirondack Railway Co. v. Indian River Co., 27 App. Div. 326.
It is urged by the plaintiff here that the Appellate Division decided in that case that the railway company had no rights under the privilege granted to it to condemn land for railroad purposes, and-had acquired none that it could assert against the state, and that any rights or privileges the railway company has under the power of eminent domain were taken subject and subordinate to the right of the State to exercise that power in its own immediate behalf. Id. 335.
The defendant insists, however, that three of the justices did not concur in this conclusion and, therefore, that it is not controlling upon the trial before me.
Two propositions are discussed in the opinion, which was written by Mr. Justice Herrick, first, the one above stated; and, second, that, if the railway company was right in its contention that it had acquired a right of way. over this township it did not need any injunction, for any conveyance to the state would have to be subject to that right.
In the concluding sentence of the opinion the learned justice says: “ I am of the opinion, therefore, that, because in one aspect of the case an injunction.is not needed to protect the plaintiff’s claim of right, and in another aspect of the case it is a practical interference with, restraint upon and obstruction to, the exercise by the State of its power of eminent domain, the injunction should be vacated and set aside.” It will be observed that in this concluding [87]*87sentence the two propositions are mentioned in the reverse order of their discussion in the opinion.
The concurrence of the other justices is in this language: “All concurred; Parker, P. J., Landon and Merwin, J J., upon grounds last stated in opinion .”
Erom this statement of grounds of concurrence the conflict befpre me as to what was decided has arisen,' the plaintiff claiming that it was the proposition first discussed in the opinion and mentioned last in the concluding sentence, and the defendant that it was directly the converse.
It is my belief that the concurrence was upon the ground that the injunction was not needed to protect the plaintiff’s claim of right instead of the ground last mentioned in the concluding sentence, yet there was no recorded dissent from the opinion of Justice Herrick and his reasoning, in discussing the first proposition, is so clear and convincing that I am led to agree with the conclusion he arrived at with respect to that question, regardless of whether or not it was concurred in by two other justices, and to hold here that the defendant company has acquired no rights under the CondemnationLaw which it can assert as against the state.
The facts upon which the opinion written at the Appellate Division is founded are fully stated in the report of that case and need not be repeated here, nor need I attempt to add anything to the reasoning leading to the conclusion above expressed. See Adirondack Railway Co. v. Indian River Co., supra.
The facts arising since the granting of the injunction, which was vacated, do not, in my opinion, furnish any material aid in support of the contention of the railway company. The owners were about to convey township 15 to the state when, on October 1, 1897, they were prevented from so doing by the injunction. They thereupon put the deed of the township in escrow to be delivered when the injunction was dissolved, and made and delivered another deed excepting the strip of land described in the railway survey. The deed in escrow was delivered March 2, 1898, after the dissolution of the injunction. On the 7th day of October, 1897, the state caused a notice, under section 4 of chapter 220, Laws 1897, to be served upon the owners of the strip of land described in the railroad map, and from that time it is insisted by the plaintiff that such land became the property of the state by appropriation in the exercise of its right of eminent domain under that law. On the same day the railway company began condemnation proceedings under the Rail[88]*88road Law to take the strip of land in question. In the proceedings commenced by the railway company, in a single day (March 12, 1898) an order of reference to hear and determine was made, a trial before the referee had, a decision made and a judgment procured that the railway company is entitled to take the strip of land for its use upon making compensation therefor, and appointing three commissioners to ascertain the compensation to be made to the owners. The state was not a party to these proceedings.
Each side claims precedence over the other in commencing their respective condemnation proceedings and the railway company attacks the constitutionality of the provisions of chapter 220., Laws 1897, so far as that act permits the condemnation of lands for public use by the method pursued by the state in this case. From the view I take of the case as above expressed it is unnecessary for me to determine these questions.
Dnder the condemnation proceedings taken by the railway company the title of the lands sought to be taken does not pass upon the procuring of a judgment of condemnation, nor does it pass until the amount of compensation has been determined and actually paid to the owners. Code Civil Procedure, §§ 3371 and 3373.
The compensation not having been determined and paid the title or right of the railway company, if any, is the same now as when the Appellate Division vacated the injunction.
In the meantime the state has procured the legal title by the delivery of the deeds herein mentioned regardless of the question whether or not the alleged condemnation by the state was effective to appropriate the land as the property of the state under the law, the constitutionality of which is here questioned.
I am aware that in the opinion written by Justice Herrick in the case at the Appellate Division, mention is made of the relative rights of the parties with reference to taking the property under the power of eminent domain, the one under the Condemnation Law and the other under the Forest Preserve Act (chap. 220, Laws 1897) and that the question of the constitutionality of the exercise by the state of the power to appropriate land by the method provided in the latter act is not passed upon in that opinion.
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Chester, J.
The state by this action seeks to enjoin the defendant, The Adirondack Railway Company, from taldng or continuing condemnation proceedings to procure a right of way for a [86]*86railroad across what is known as township 15, which lies in the counties of Warren, Essex and Hamilton and which is wholly within the Adirondack park and is a part of the forest preserve.
While the state was conducting negotiations for the purchase of township 15 this railway company procured from the Special Term an injunction restraining the owners of the township from conveying it to the state, except subject to the right of way claimed by the company. This claim was based upon the filing by the company on September 18, 1891, of a map and profile of its proposed right of way over such township in the clerks’ offices in the counties of Warren, Essex and Hamilton, under section 6 of the Railroad Law and the service of notices upon the property owners. From an order continuing that injunction during the pendency of the action, an appeal was taken to the Appellate Division in the third department, where the order was reversed and the injunction vacated. Adirondack Railway Co. v. Indian River Co., 27 App. Div. 326.
It is urged by the plaintiff here that the Appellate Division decided in that case that the railway company had no rights under the privilege granted to it to condemn land for railroad purposes, and-had acquired none that it could assert against the state, and that any rights or privileges the railway company has under the power of eminent domain were taken subject and subordinate to the right of the State to exercise that power in its own immediate behalf. Id. 335.
The defendant insists, however, that three of the justices did not concur in this conclusion and, therefore, that it is not controlling upon the trial before me.
Two propositions are discussed in the opinion, which was written by Mr. Justice Herrick, first, the one above stated; and, second, that, if the railway company was right in its contention that it had acquired a right of way. over this township it did not need any injunction, for any conveyance to the state would have to be subject to that right.
In the concluding sentence of the opinion the learned justice says: “ I am of the opinion, therefore, that, because in one aspect of the case an injunction.is not needed to protect the plaintiff’s claim of right, and in another aspect of the case it is a practical interference with, restraint upon and obstruction to, the exercise by the State of its power of eminent domain, the injunction should be vacated and set aside.” It will be observed that in this concluding [87]*87sentence the two propositions are mentioned in the reverse order of their discussion in the opinion.
The concurrence of the other justices is in this language: “All concurred; Parker, P. J., Landon and Merwin, J J., upon grounds last stated in opinion .”
Erom this statement of grounds of concurrence the conflict befpre me as to what was decided has arisen,' the plaintiff claiming that it was the proposition first discussed in the opinion and mentioned last in the concluding sentence, and the defendant that it was directly the converse.
It is my belief that the concurrence was upon the ground that the injunction was not needed to protect the plaintiff’s claim of right instead of the ground last mentioned in the concluding sentence, yet there was no recorded dissent from the opinion of Justice Herrick and his reasoning, in discussing the first proposition, is so clear and convincing that I am led to agree with the conclusion he arrived at with respect to that question, regardless of whether or not it was concurred in by two other justices, and to hold here that the defendant company has acquired no rights under the CondemnationLaw which it can assert as against the state.
The facts upon which the opinion written at the Appellate Division is founded are fully stated in the report of that case and need not be repeated here, nor need I attempt to add anything to the reasoning leading to the conclusion above expressed. See Adirondack Railway Co. v. Indian River Co., supra.
The facts arising since the granting of the injunction, which was vacated, do not, in my opinion, furnish any material aid in support of the contention of the railway company. The owners were about to convey township 15 to the state when, on October 1, 1897, they were prevented from so doing by the injunction. They thereupon put the deed of the township in escrow to be delivered when the injunction was dissolved, and made and delivered another deed excepting the strip of land described in the railway survey. The deed in escrow was delivered March 2, 1898, after the dissolution of the injunction. On the 7th day of October, 1897, the state caused a notice, under section 4 of chapter 220, Laws 1897, to be served upon the owners of the strip of land described in the railroad map, and from that time it is insisted by the plaintiff that such land became the property of the state by appropriation in the exercise of its right of eminent domain under that law. On the same day the railway company began condemnation proceedings under the Rail[88]*88road Law to take the strip of land in question. In the proceedings commenced by the railway company, in a single day (March 12, 1898) an order of reference to hear and determine was made, a trial before the referee had, a decision made and a judgment procured that the railway company is entitled to take the strip of land for its use upon making compensation therefor, and appointing three commissioners to ascertain the compensation to be made to the owners. The state was not a party to these proceedings.
Each side claims precedence over the other in commencing their respective condemnation proceedings and the railway company attacks the constitutionality of the provisions of chapter 220., Laws 1897, so far as that act permits the condemnation of lands for public use by the method pursued by the state in this case. From the view I take of the case as above expressed it is unnecessary for me to determine these questions.
Dnder the condemnation proceedings taken by the railway company the title of the lands sought to be taken does not pass upon the procuring of a judgment of condemnation, nor does it pass until the amount of compensation has been determined and actually paid to the owners. Code Civil Procedure, §§ 3371 and 3373.
The compensation not having been determined and paid the title or right of the railway company, if any, is the same now as when the Appellate Division vacated the injunction.
In the meantime the state has procured the legal title by the delivery of the deeds herein mentioned regardless of the question whether or not the alleged condemnation by the state was effective to appropriate the land as the property of the state under the law, the constitutionality of which is here questioned.
I am aware that in the opinion written by Justice Herrick in the case at the Appellate Division, mention is made of the relative rights of the parties with reference to taking the property under the power of eminent domain, the one under the Condemnation Law and the other under the Forest Preserve Act (chap. 220, Laws 1897) and that the question of the constitutionality of the exercise by the state of the power to appropriate land by the method provided in the latter act is not passed upon in that opinion. That act, however, provides not only for a method of appropriation by the state but authorizes the forest preserve board to acquire land for the state by “ purchase or otherwise.” § 2.
In this case the state has not only acquired the land by agreement with and deed from the owners but has pursued the method [89]*89provided by the statute for a condemnation or appropriation of it, and I think the conclusion reached in the opinion referred to as to the superior right of the state is equally well founded, regardless of by which of these two methods the state procured title. If I am right in this a determination of the constitutionality of the act authorizing the state to pursue the method of condemnation it did, is not essential to a decision of the case, for the state may rely alone upon its title by deed.
The state having acquired the lands, they are now part of the forest preserve and are brought within the protection of section 7 of article 7 of the Constitution of 1894, which provides that, “ The lands of the State, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.”
These lands are not, therefore, subject to be taken by this railway company and the plaintiff is entitled to the relief demanded in the complaint, with costs.
Ordered accordingly.