Robinson, J.
Feeling conscious that the character and importance of this case, and the extent of the interests involved, exact from the court the most diligent and prompt consideration, after a trial protracted ■through two weeks, and hearing the elaborate arguments of the learned counsel engaged in the case, I have hastened to bestow upon its consideration such time and attention as a regard for the other multifarious judicial duties and claims upon me, while daily holding court, has permitted. I am conscious that from such intermittent considerations of the subjects involved, I may fail to give due weight to some portions of the arguments presented by the eminent counsel who have so ably managed the cause, and may possibly be somewhat influenced by preconceived impressions of the law governing the case from having, before being honored with my present office, been engaged as advocate upon some one side or other of the questions presented, or from having heretofore ex-[486] presad judicially opinions in respect to them. But having so far as may be divested myself of remembrance of such impressions or convictions, I have again endeavored to renew my consideration of the merits of the controversy and give my present convictions on the-points hereinafter discussed.
That which is first suggested on the part of the defendant is, that this court has no jurisdiction to entertain the action, so far as to afford any equitable relief by way of a preventive order of injunction restraining the defendants from constructing their railroad in front of the plaintiff’s premises, Nos. 7 and 9 Front street, in this city. Although my conclusions upon the merits of the controversy are.in the defendant’s favor, yet the-proposition is of such a character, that if tenable, such a judgment would be of little avail, and it necessarily requires- an expression of opinion upon its validity. The objection is based upon a. pro vision in the act of April 22, 1867, chapter 489, entitled “An act to provide for the construction of an experimental line of railway in the counties of New York and Westchester,” authorizing the West Side and Yonkers Patent Railway Company to proceed with the construction of' an elevated railway in the manner therein indicated.. The act has no reference to any railroad in or through Front street, but related solely to one to be constructed on the west side of the city, running exclusively through Greenwich street to the Ninth avenue and thence northward. Section 11 of that act requires that “All applications for injunctions in any manner relating to said railway shall be made only to the supreme court.” The present controversy has no reference to the particular railroad authorized by that act, except so far as (it is claimed), the above provision is applicable to the present defendants, who have so oceeded to all the rights and privileges of the West Side and Yonkers Patent Railway Company, which it [487] is claimed have become attached to their own chartered rights, to establish a railroad in that and other localities, with like special exemption from any such control of this court.
The constitution of 1864, article 8, section 3, provided as follows: “All corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons.” The amendments to the constitution of 1870 in no way interfered with this provision, and by the judiciary article 6, section 12, confirmed to this court (and other city courts of record), its existing powers and jurisdiction, with such further civil and criminal jurisdiction as might be conferred by law. It then had, among various other powers, general jurisdiction at law and in equity of all domestic corporations transacting business or established by law in this city; including the power to make a decree for preventive relief by injunction ¿gainst a threatened injury, as prayed for in this action.
By the act of 1873, chap. 239 (p. 180 of Bess. Laws), it was enacted that this court (with others) should thenceforth have original jurisdiction at law and in equity concurrent and co-extensive with the supreme court, in all civil actions and of all proceedings of a special nature, which embraced all civil remedies.
These constitutional provisions and the act of 1873, passed in accordance with them, would seem to effectually dispose of this preliminary question, if any shadow of doubt existed as to its previous powers.
The act of 1867, limiting the right to equitable relief by way of injunction against the West Side and Yonkers Patent Railway Company, and interdicting this and other courts from exercising the power of a court of equity, from granting such relief in a case properly presented and. which it might entertain against a natural person, was a clear and manifest invasion of the con* [488] stitution, and of this express mandate that the corporation should be liable “to be sued, in all courts, in like cases as natural persons.” To hold otherwise would seem to be a perversion of the plain language of that instrument. The constitution of 1870, having confirmed this court in the powers and jurisdiction it then possessed, and in such others as should thereafter be conferred upon it by law, it cannot well be imagined or successfully maintained, that it does not now possess equal powers and jurisdiction (within its territorial limits) with those of the supreme court, in all civil actions and special proceedings.
In the defense of the somewhat celebrated Forrest divorce suit, “ quorum pars minima fui,” I ventured to suggest to my distinguished colleagues, an analogous objection to the jurisdiction of the superior court, in which it was pending, predicated upon these propositions—the jurisdiction over matters of divorce originally existed in the ecclesiastical courts ; in this State it was first conferred upon the chancellor, and was exclusively exercised by the court of chancery. On the adoption of the constitution of 1846 abolishing that court, all the powers exercised by the court of chancery were transferred to the supreme court, and such transfer of the special jurisdiction of the chancellor in matters of divorce not being alluded to, was not conferred upon the superior court by section 33 of the Code of 1848, giving jurisdiction to that court of “ all actions where all the defendants reside or are personally served with the summons” within this city. This point was ably presented on argument, by those counsel, but met with the like disastrous fate of all other efforts on our client’s behalf, in the final and decisive opinion of the court of appeals, reported in 25 JY. Y. 501. The claim to a want of jurisdiction in the act of 1867, chap. 489, section 11, that all applications for injunction in any matter relating to the railway authorized by that [489] act, must be overruled; first as unconstitutional; second, as inapplicable to the present railway on the east side of the city, as that referred to in the act was one on the west side and on a different route ; and third, if originally of any avail, any special jurisdiction was by the act of 1873, under article 6 of the constitutional amendment of 1870, expressly conferred on this court in cases (like the present) coming within its local jurisdiction, and by the appearance of the corporation whose business is within this city.
Recurring to the claim made by the plaintiff to ■ownership in fee in the street in front of his premises, the following facts appear : The streets and highways within the city limits, that had been opened previous to 1664 while the Dutch government had jurisdiction of the territory of the city, were vice publica}, and belonged absolutely to the sovereign power, and the adjacent owner had no right to the soil or bed of the road either during its use or upon its discontinuance. Upon the accession of the British government, it succeeded to such royalties as had previously been held and possessed by the Dutch government in and to such streets and highways as had been laid out and established, and these comprised almost, if not all, the streets of the city, below Wall street now existing, which were then above low water mark. The Dongan charter of 1686, section 2, granted to the city corporation “all the streets, lanes, highways, and alleys in the city, as well for its public use and service, and of the inhabitants of Manhattan Island aforesaid and travellers there.” Authority was thereby also given to the corporation (§ 2, Kent's Charter, p. 15) “to establish, appoint, order and direct the establishing, making, laying out, ordering, amending, and repairing of all streets, lanes, alleys, highways, water courses, ferries and bridges, in and throughout the said city of New York and Manhattan’s Island aforesaid, necessary, [490] needful and convenient for the inhabitants of said city and Manhattan’s Island aforesaid and for all travellers and passengers there, provided always that this license so as above granted for the establishing, making, laying out of streets, &c., should not be extended or be construed to extend to the taking away of any person or persons’ rights of property without his, her, or their consent, or by some known law of the said province.”
The colonial act of October 9, 1691, by section 1 authorized the corporation to appoint surveyors of streets, &c., to see the same were laid out with uniformity, according to such rules and orders of -building and laying out the same, as should be established by the corporation, who were thereby authorized to make such rules and orders for such streets as should be found convenient for the inhabitants; by section 2 it was provided, that if in the laying out of any future street, &c., “they do take any person’s grounds,” they should “givenotice to the owners and parties interested in the ground so to be taken for the intent aforesaid, and to the intent that reasonable satisfaction may be given for the ground as shall be taken and employed for the use aforesaid . . - . the mayor, aldermen, and common council shall and may treat and agree with the owners and others interested therein.” And if no agreement was made they were to summon a jury before the mayor’s court to inquire and assess such' damages and recompense as they should see fit to be awarded to the owners and others interested, according to their several and respective interests and estates in any such ground or part thereof for their respective rights and interests in the same as by the said mayor, aldermen and commonalty should be adjudged to be converted to the purposes aforesaid, and upon such verdict and judgment of the court, and payment or tender of the amount of such assessed value “ the judgment was to be binding” upon and [491] against the parties, their heirs, executors, and assigns and others claiming any title to the said ground, and shall be full authority to the mayor, aldermen, and common council to cause the said ground to be converted and used for the purposes aforesaid.
The provisions of this act were substantially reenacted in sections 1 and 2 of “an act to regulate the buildings, streets, wharves and steps in the city of New York,” passed April 16, 1787 (1 Greenl. Laws, 441). It recognized the, existing power of the corporation to establish, make and lay out new streets, but regulated the mode of exercising it, in invitum, as contemplated by the Dongan charter in the provision that such license should not be construed to extend to the taking away of any person’s right or property with out consent, or “ by some known law of the said province.” In my opinion in Patten v. N. Y. Elevated R. R. Co.,* I am conscious of some inaccuracy in regarding the act of 1691, rather as the original authority by which streets might be established, laid out and made, or otherwise than as such supplemental colonial legislation as was necessary to carry into effect the public powers in this respect that had been conferred upon the corporation by the Dongan charter and which continued in full force and effect until after the revolution, and became superseded in this respect by the act of April 3, 1807, (chap. 115, section 9).
By the subsequent Montgomery charter of 1730, which'confirmed the previous Dongan and Cornburj charters (sec. 37) by sec.-16, general power, license and authority was also conferred upon the corporation to establish or appoint, order and direct the making and laying out of streets in and throughout the city in such manner as the common council for the time being, or a major part of them, should think or judge to be neces[492] sary and convenient for all inhabitants and travellers there.
This charter also granted to the corporation lands in the waters of the East and Hudson rivers, extending outward four hundred feet from low water mark, which space, as appears from the testimony, includes the premises owned by the plaintiff, and also the portion of Front street in front thereof, which he also claims to own in fee.
These several charters of the city, including that known as the Cornbury charter, were, by an act of the colonial general assembly passed October 14, 1732, entitled “ an act for confirming unto the city of New York its rights and privileges” (1 Gainers Laws, N. Y. 169, chapter DLXXXIV, 584), declared “ good, valid, perfect, authentic and effectual in the law,” and were ratified and confirmed, and the act itself was declared a public act. Their validity has scarcely ever been since seriously questioned.
The premises, plaintiff’s ownership of which is undisputed, are known as Nos. 7 and 9 Front street in this city, and were conveyed to him by the deed under which he holds his title, made by Abraham B. Conger, and Mary Rutgers M’ Crea, his wife, dated December 18, 1849, by the following description :
“All that certain lot of land situate, lying and being in the first ward of the city of New York, aforesaid, on the southeasterly corner of Moore and Front streets, bounded northerly in front by Front street, aforesaid, •easterly by ground conveyed by John S. Conger, and Sarah, his wife, to Elias H. Herrick, by deed bearing date the 1st day of May, 1839,- southerly by ground now or late of the said Elias H. Herrick, and westerly by Moore street, aforesaid, containing in breadth on Front street thirty feet ten inches, and in the rear thirty-eight feet ten inches, and in length on each side eighty feet, be the same more or less.”
[493] The title to such land as the plaintiff owns under that conveyance, is derived through two grants made by the corporation of premises that lay adjoining; one being made to Isaac De Peyster, dated December 2, 1773, and the other to Thomas Ellison, Jr., dated December 26, 1773, which each described the premises granted as that certain ground and water lot, situate in the south ward of said city, opposite a certain dwelling house fronting the street, commonly called the Dock street (wharf) lying between said dwelling house and the water lot thereby granted, to extend southerly so far into the East river or harbor as the new pier of William Milliner did extend; and each stated the premises granted to be in breadth on Dock street aforesaid (now Water) also in breadth on the north side of Water street (now Front) in precise measurements, and on the south side of Water street (now Front) in other precise distances, as to which it was stated the premises intended to be conveyed more fully might appear by a survey of Gerard Bancker, a city surveyor, dated November 10, 1772, and filed in the office of the town clerk, reference being had thereto ; and each grant contained on the part of the several grantees their respective covenants, among others, that they would erect and make a good and sufficient firm wharf or street of forty-five feet, English measure, in breadth at the distance of 139 feet eight inches from the aforesaid street called Dock (now Water) street, which (now Front street) was to range with the present street, to the "eastward thereof, adjoining a basin there lately made, called Water (now Front) street,” which said street shall also be built, erected and made in such manner upon a straight or right line, as one of the "surveyors of the said city shall instruct and directand also another exterior street (now South) of forty feet in breadth on the outer part of such water lot, next to the East river, all of which streets were to be so built, [494] erected and made on - straight lines, as the surveyors of the city should direct, and were all to be completely made and finished by such covenantors, on or before May 20, 1778, and (as was further covenanted) said several streets “shall forever thereafter continue and be for the free and common passage of and as public streets and ways for the inhabitants of the said city and all others passing and returning through and by the same, in the same manner as other streets of the same city now are and lawfully ought to be.”
The claim made by the plaintiff to own the fee, or any interest in the land in Front street in front of his premises to the center of the street, under these public acts and grants, presents various considerations.
First: It appears from the several grants of the corporation to De Peyster and Ellison, that Front (then styled Water) street, had been within the language of the Dongan charter “ established, appointed, ordered and directed” so far that it had been surveyed and plotted out by Gerard Bancker, a city surveyor, on a map dated November 10, 1772, and filed in the office of the town clerk, which was referred to • in the deeds, and adopted as part thereof. This map (now lost), as the grants disclose, gave the precise location of Front (then Water) street, and the precise dimensions thereon of the premises granted _ on the north and south sides thereof, and recognized Water (now Front) as an existing street.
The act of 1691 had reference to the involuntary taking by the lands of other persons for the purposes of streets, and had no application to such as the corporation had already “ established, appointed and directed ” to be made or laid out in and through premises which they owned in fee. While the charters above mentioned conferred upon and granted to the corporation private and absolute rights of property in markets, docks, lands and ferries, and also in other franchises [495] given and allowed to be exercised for corporate purposes, but in trust for their constituents, they also invested them with many other powers intended to be exercised c ‘ in jure publici ’5 for the general public good (Bailey v. The Mayor, &c., 3 Hill, 531; Benson v. The Same, 10 Barb. 223). The latter power constituted a delegation of part of the political or governmental powers of the sovereign, or sovereign power, which might at any time be modified or revoked by the legislative or sovereign power. In the exercise of such public functions in the laying out and establishing of streets, the corporation were but the representatives of such sovereign power, and they, in its exercise, dominated and controlled their own private rights, as well as those of private persons. In the conveyance of their own private lands, over and upon which they had established or appointed streets upon such common and general plan as that indicated by their grants to Be Peygter and Ellison as laid out on the Bancker map, and in treating and dealing with such streets as they had under such public powers so laid out, established or appointed, as indicated by their grants, the same rule of construction is applicable thereto, as would appertain in construing any other public grant; to wit, that it must be held more strictly against the grantee, so that no title should pass in or to a public street or highway, "although the language used would convey it as between private individuals.
This rule of construction is founded upon considerations of public policy, in order to preserve in the public, undiminished, the right of absolute control over the public property and its right of use of the streets and highways. When the public function was thus exercised by the corporation, in laying out and establishing streets and highways over any property they held for mere municipal purposes, the character of their tenure therein became changed, and their title by such public [496] dedication became one held in trust for the specific purpose of general public use, and, in my view, to the same intent and purpose as they held title in the other' streets and "highways of the city, and subject to like-legislative interference and governmental control. The question whether they have some interest in the possibility of reverter, or their estate therein, is, or may be,, one simply subject to-the principles and rules of ordinary dedication, does not, however, arise in this case,, and will become the subject for decision when a conflict of such possible antagonistic interests is presented for adjudication.
But a reference to these grants scarcely needs any appeal to this principle of construction. The character of the tenure of the corporation in the existing streets of the city derived through the Dongan and Montgomery charters, as grantees of the absolute title previously held by the Dutch, and as subsequently derived from the crown, or as affected through means of the act of 1691, was recognized by De Peyster and Ellison in the grants made to them; and they, and not the corporation, covenanted that said streets mentioned in the grants (now Water and South), should forever thereafter continue as public streets and ways for the inhabitants of the said city, &c., ‘ ‘ in the same manner as the other streets of the same city now are or lawfully ought to be.” As to all such other streets (so far as it is made to appear), they were without exception held by the corporation absolutely in fee, in trust for- the general public use and were not limited in such use to a mere public easement, but might be appropriated to all and every such public use and purposes as the legislature or sovereign power might lawfully prescribe.
But if the opening of Front street in front of these lots, If os. 7 and 9, was in any respect in derogation of any right of property of De Peyster and Ellison, secured by their grants, it is to be presumed (the contrary not [497] being shown) that it was so done in accordance with their covenants, and on execution thereof, so that the street became by its execution one held, in the language of the covenants, in the same manner “ as other streets of. the same city now are, or lawfully ought to be.” The law would infer from this long-continued use of the street by the corporation for many years past, a complete execution of this covenant, and that done, which in equity ought to have been done.
' Plaintiff’s counsel also claim that a true construction of the act of 1691, at most authorized the taking of a mere easement as distinguished from the absolute “taking of the ground,” and payment of its value as indicated by the language used in the act of 1691; and rely upon the case of the Washington Cemetery v. The Prospect Park and Coney Island R. R. Co., recently decided by the court of appeals, but not yet reported.