
    In the Matter of the Application of the Greenwich and Johnsonville Railway Company, Appellant, v. Greenwich and Schuylerville Electric Railroad (The Hudson Valley Railway Company Answering Herein as Its Successor) and Addie B. Sprague, to Acquire Real Property, Respondents.
    
      Railroad,—limitation upon its right to alter its route where “the line'can be improved thereby”—notice of filing of a map and profile of its route is necessary before condemnation.
    
    Section 13 of the Railroad Law (Laws of 1890, chap. 565, as amd.), providing that, if it-shall appear to the directors of a railroad corporation “ that the line can be improved thereby ” they may alter or change the route of its road or its termini and locate it or any part of its termini in a county adjoining either of those mentioned in the articles of association, contemplates a change of route for the purpose of benefiting the line constructed under the articles of association and the improvement intended must have reference to some feature of the line itself, such as an easier grade or a less cost of construction or of main- ■ tenance. The section does not authorize a railroad corporation to select a new terminus, seven miles beyond its original terminus and extend its railroad to such new terminus, where the intended change will result in no improvement to the original line itself, except in the increased business expected as a result of the extension.
    Under section 6 of the Railroad Law a railroad corporation cannot institute a proceeding to condemn any of the lands necessary for its route, until fifteen days after notice of the filing of the map and profile of the route has been’ served upon all the owners and occupants of the lands over which the route passes.
    The. fact that the owners and occupants of the lands sought to be condemned in the particular proceeding have been served with the prescribed notice and have omitted to apply for a change of the route, does not prevent such parties from attacking the condemnation proceedings on the ground that other owners and occupants have not received such notice.
    Appeal by the petitioner, the Greenwich and Johnson ville Railway Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 20th day of February, 1902, upon the report of a referee dismissing the petition.
    
      C. C. Van Kirk, for the appellant.
    
      Thomas O’Connor, for the respondents.
   Parker, P. J.:

The plaintiff was organized as a steam railroad company in 1879, and since that time has been operating its road from Johnson-ville,. its southern terminus, in the county of Rensselaer, to Greenwich, its northern terminus, in the county of Washington, On June 29, 1901, it resolved by a vote of two-thirds of its directors to alter and change its line and terminus, by extending its road from Greenwich to Schuylerville in the county of Saratoga, a ■distance of about seven miles. On July first it filed in the proper office a certificate of such extension and a survey and map ■of the line as so extended, and thereupon claimed, and now insists, that by such action it has, by force of the provisions of section 13 •of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1897, chap. 235), acquired the right to build an additional road along and upon such extended line and to condemn all lands necessary for that purpose. In this proceeding it seeks to condemn from these defendants lands needed for its right of way. The issues raised by their answer were referred to a referee. After a hearing before him its petition was dismissed, and from the order or judgment entered on such decision this appeal is taken..

Upon the hearing many objections were taken by the defendants, some of which present important and interesting questions.

There are two parcels of land described in the petition. The plaintiff claims that, as to the parcel first described, the defending company did not acquire the ownership thereof until after the plaintiff had filed its map and profile and served notice thereof upon Addie B. Sprague, the then owner, and that, as to it, the defendant, therefore, acquired it subject to the plaintiff’s right to condemn the same (Rochester, Hornellsville & Lackawanna R. R. Co. v. New York, Lake Erie & Western R. R. Co., 110 N. Y. 128); that, as to the parcel secondly described in such petition, although the defending company owns the land so sought to be taken, it is neither held nor needed by it for the purposes of its incorporation, and that hence it is subject to be taken in invit/wm from such company, the same as if it were a natural person. To this the defendant replies that under the last provision of section 7 of the Railroad Law (as amd. by Laws of 1892, chap. 676), no lands held or owned by a railroad company can be condemned by another railroad company; that the only easement or interest it can now acquire in another’s lands is the right to cross its track or right of way, as provided for by section 12, and that it may hot do that in such a manner as to affect any depot grounds or gravel pit. It further claims, as a matter of fact, that. not only both parcels of land were acquired by it in 1899, but also that both parcels are necessary for the purposes of its incorporation. It is also strenuously urged by the defendant that it does not appear hat the taking of such land by the plaintiff is a public necessity, and hence that.it may not maintain these proceedings. The referee has found with the defendant on all of these questions.

It seems to me that, if the plaintiff acquired under section 13 any right to extend its road over the seven miles contemplated, such ands as it sought to acquire for the purpose of its right of way Were necessary, and the finding of the referee in respect thereto was error. And as to the questions of fact, whether the defendant acquired title to the parcel first described by the deed taken from Addie B. Sprague- in 1899, and as to whether that portion of the-thirty-five acres acquired by it in 1899, which is sought to be condemned in the parcel secondly described, can be fairly deemed to be held and needed by it for gravel pits, depots, or for any other purposes necessary to its incorporation, within the rule, as laid down in Matter of Rochester, Hornellsville & Lackawanna R. R. Co. (110 N. Y. 119), I have very grave doubts. But I dó not examine- and decide those questions, because there are two principal reasons-why, in my judgment, the referee’s decision must be sustained^, even though he was in error as to all of those other questions.

Evidently the plaintiff must have acquired the right to construct a railroad from Greenwich, to Schuylerville before it can maintain this proceeding. Does section 13, upon which it relies, give it that right ? Do its provisions enable a railroad company, which, under its articles of association has located its termini, constructed its • road between them,' and for upwards of twenty years has operated it as so fixed and located, to extend its road and establish new termini at any point it may desire in an adjoining county ? ’ That section provides, substantially, that if it shall appear to the directors “ that the line can be improved thereby,” they may by a two-thirds vote, etc., alter or change the route of its road, or its termini,, and:

locate it, or any part of it, or its termini, in a county adjoining either of those mentioned in its articles of association. It is to be noticed that the change may be made when it appears that the Une will be improved. In the case before us no change whatever in the line between Johnsonville and Greenwich is contemplated. The line and those termini are to remain as they have ever been. The only change contemplated is to select a new northern terminus seven miles beyond Greenwich and build a new road to it; and the only possible improvement to “ the line ” that can be expected is that the business which will be transacted over it will be increased. Nothing in the “line” itself is expected to be improved; the business which the road will thereafter transact it is expected will be.

I am of the opinion that such a change for such a purpose is not authorized by that section. Even though a change under that section may be made after the road is fully completed and in operation, yet it must be dne made for the purpose of benefiting the line contemplated in the articles of association, and the improvement intended must have reference to some feature of the line itself, such as an easier grade or a lessened cost of construction or of maintenance. The change intended by such section was not a mere reaching out into new territory for the purpose of increasing the business of the road. The plaintiff’s road is well situated to illustrate the extent to which a company could, by mere resolution, enlarge its franchises, if section 13 gives the rights for which the plaintiff contends. Under its articles of association it acquired the right to operate a railroad from Johnsonville to Greenwich, some fifteen miles in length. Under its construction of section 13 it may build an additional line from Greenwich to Whitehall, in the county of Washington, and from Johnsonville to the city of Hudson, in the county of Columbia, and thus operate a new road more than six times as long as its original line, and through a thickly peopled part of the State, where it would parallel several Other lines. In view of the pronounced policy of the State, that new roads shall not be constructed except on the certificate of public convenience and necessity, required by the 59th section of the Railroad Law (as amd. by Laws of 1895, chap. 545) I am of the opinion that such a construction was not intended and should not be given to section 13. The plain purpose on the part of the plaintiff to extend its bush ness, rather than to alter its line for the purpose of bettering it, is apparent. ' Such a change section 13 does not, in my judgment, authorize it to make, and hence it has acqnired.no right to build this new line or to condemn any lands for that purpose.

But however that may be, there is another particular in which the plaintiff is premature in instituting these proceedings.

Section 6 of the Railroad Law (as amd. by Laws of 1892, chap. 676) provides, that a steam railroad company, before constructing any part of its road in any county, shall file a map and profile of the route adopted by it in any county in the county clerk’s office, properly certified, etc.. Written notice shall then be given to all actual occupants of the lands over which the route is so designated of such filing and that the route passes over their lands. Any such occupant or owner may, within fifteen days after receiving such notice, institute proceedings to alter the route as so designated by the company. In such a proceeding .the justice to whom the application is made may appoint commissioners, an inquiry before them may be had, and the proceeding may result in a change of the line, not only upon the lands of the applicant, but elsewhere in the county. This section is designated, “Location of route,’-’ and its purpose is evident. It proceeds upon the. theory that the route, as located by the company, should not be controlling upon the parties through whose lands it passes ; that all such owners in the county should have an opportunity to-be heard upon - the question whether the line so selected is a fair and just one, not only to the company, but to those upon whose lands it is to be a burden. Therefore, all such parties, except those who have transferred their lands to the company, must be notified, and it has been held that, until all are so notified and the fifteen days have fully expired, the appointment of commissioners on the application of any owner is prematurely made. (Matter of Long Island R. R. Co., 45 N. Y. 364.)

In the case before us the plaintiff has recognized its liability to proceed in the location and construction of this new line in the manner required by the Railroad Law, and has filed the map and profile of its new route, and caused it to be certified as required- by section 6; but it is not claimed that notice of such filing has been given to any other of the owners through whose lands the line passes in Washington county than the answering defendants herein. The map on file shows that there are many other such persons, but no proof is made, nor is it really claimed by the plaintiff, that all of the persons which the section requires to be so notified have as yet been served with such notices. It claims, however, that inasmuch as the defendants received the notice and omitted to apply for a change of the route, they cannot now defend against these proceedings because others have not received it. But this claim is inaccurate. It might be that the line would be so changed upon the application of another that the precise lands that the company sought to take from an owner would no longer be needed. In the case before us probably that situation does not arise; but the section is designed to cover every case, and plainly a company is not in a position to take lands in invitum until its line is so finally fixed and located through a county that by no peradventure would lands so taken become unnecessary. This view is distinctly held in Matter of Niagara Falls Ry. Co. (46 Hun, 94), and the able and elaborate opinion in that case renders a more extended discussion of the question unnecessary. Moreover, the section itself in express terms provides that no proceedings to condemn any lands in any county shall be instituted by the company until fifteen days after the notice required by that section (that is, the notice on all occupants, etc.) has been given. Such service is a condition precedent to the‘institution of condemnation proceedings, and it not having been made in this case the petition was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Kellogg, J., concurred ; Chase, J., concurred in result; Smith, J., dissented.

. A majority of the court determined: First, that the conclusions of fact are unsupported by the evidence and should be reversed; second, that, as a matter of law, the petitioner is not entitled to the relief asked. Judgment affirmed, with costs.  