
    In the Matter of THE NEW YORK AND CANADA RAILROAD COMPANY, Respondent, v. GEORGE GUNNISON, Appellant.
    
      Bail/road — Beal estate — when company cannot take without owner’s consent.
    
    Under the statutes authorizing railroad companies to acquire title to real estate without the owner’s consent, a company cannot take land simply for the purpose of removing gravel therefrom, to he used in constructing a distant portion of its road.
    Appeal from an order of the Special Term, appointing commissioners to appraise the value of the lauds to be taken by the Mew York and Canada Railroad Company, for the purpose of constructing their road.
    
      Mr. Hutchings, for railroad company.
    
      D. B. Hill, for George Gunnison.
   Boardman, J.:

Froin a- reading of the appeal papers, it is fair to say that the railroad company needs, and will need, additional lands for side tracks and storing cars. Whether the necessity requires the use of the particular lands in controversy, is not so clear. Still, enough is shown, of difficulties and obstructions in other neighboring localities, to lead to the conclusion that no other property is so available, or could be rendered so useful at so small an expense, as these lands of Gunnison. If so, the selectiomof proper grounds for these, and other necessary purposes, is very much in the discretion of the managers, if exercised in good faith.

But the railroad company claims the right, and indicates an intent to use a portion of the lands, of which it seeks to acquire the title, for the purpose of taking therefrom, gravel, to ballast the road for many miles to the south of Grown Point. It appears that this land is mostly made up of a fine quality of gravel, suitable for such purpose, and that no suitable gravel can be obtained for fifteen miles south of it. One of the objects for which such laud is necessary to said company, is to excavate and carry away this gravel for ballast.

The right of eminent domain is harsh in its application to individual rights. It is given for the public advantage, and to accomplish a public purpose. To accomplish such purpose, the railroad company is allowed to take private property, upon just compensation. Whatever is essential and indispensable to the construction, maintenance or running of the road, is allowed to be taken. What the company acquires, is not a fee simple to the lands—not an absolute right to use them, irrespective of the title and interests remaining in the individual—but a right of way, and the right to adapt the soil and land, within its limits, to the ordinary uses and necessities of such a way.. If a cut is required, the soil taken therefrom may be used for a fill, wherever needed. But it has not been considered lawful, so far as I can discover, to take lands outside the limits of its way; to remove earth, timber, rocks or materials therefrom for the building of its road, under the right of eminent domain and public necessity. At page 552, of the last case, Allen, J., says: The right to take lands upon which to erect a manufactory of cars * * * is not included in the grant. Neither can lands be taken for a mere subsidiary or extraordinary purpose.” He then indicates many of the purposes considered indispensable, such as justify the taking of land m iiwitum. But he nowhere intimates that the soil, below grade, may be taken and carried away for use in other localities. Such an act would be in excess of a right of way, or passage. Such act is not essential to the construction and maintenance of a railroad, more than the use of ties or fuel. Yet, no one would maintain that a railroad company could condemn land, for the purposes of ties or fuel.

The general principles, applicable to such cases, are well considered in R. R. Co. v. Davis. The right of condemnation is the exercise of an extraordinary power reserved by the State, in hostility to the private rights of citizens. It must therefore be expressly granted, when exercised by a private or municipal corporation. The grant will not be extended by inference or implication. Nor can anything be taken, except by virtue of the law, for the benefit of the public, and under an indispensable necessity in the construction and maintenance of the road. It is not sufficient that it is convenient or cheaper for the road. Because, such a rule would apply to ties, fuel, or outside soil for the purposes of embankments. It follows that the railroad company cannot acquire the right to this land, for the purpose of excavating the soil and carrying it away for many miles, under the doctrine of eminent domain, by virtue of the statutes now in force.

The statute of 1869 enlarges the rights and powers of railroad companies, but such law only applies to railroads completed, and to the acquisition of other lands beyond their original necessities. But upon the merits of this case, the railroad company does not bring itself within any rule of necessity. All that is claimed in the affidavits on behalf of this application, is, that no gravel, suitable for ballast, is to be had upon its road, south of these lands, for ten or fifteen miles; and that no other gravel, as good as this, is found upon the line of its road, between Port Henry and Putnam, a distance of twenty miles. By the affidavit of Buck, it appears that the company has obtained large amounts of gravel, just north of these lands; and, upon information and belief, that the company has purchased and owned several acres, within one-half mile of Gunnison’s, on the north, and that additional gravel beds can there be procured, at a reasonable rate. By the affidavit of W. 0. Gunnison, it further appears that the company owns another gravel bed, of great extent and good quality, from four to five miles north of Gunnison’s, and, since March, 1873, has been removing the same for railroad uses. These facts are not controverted by the petitioner.

In view of these facts, of the value and situation of these lands, it would seem to be an unjust and unnecessary exercise of the power conferred upon the company, if these lands, or any part thereof, were taken for the excavation of gravel therefrom.

By reference to N. Y. and B. R. R. v. Godwin, and Matter of N. Y. and J. R. R. Co., it may be doubted whether the map of the company, on file, properly shows the extent of the land to be taken. I am inclined to the opinion, however, that the description in the petition is sufficient, and obviates the objection to the proceedings.

No other objection requires particular notice. It follows that the order of the Special Term should be reversed, with ten dollars costs, and the motion to appoint commissioners of appraisement, should be denied, with ten dollars costs, but without prejudice to a new application.

Present—Miller, P. J., Boardman and James, JJ.

Order reversed, with costs 
      
       1 Red. on Rail., 242 (n 6), 247, (n 2); In Matter of N. Y. and H. R. R. v. Kip, 46 N. Y., 546.
     
      
       43 N. Y., 137.
     
      
       Chap. 237.
     
      
      
         Railroad Co. v. Davis, 43 N. Y., 143.
     
      
       12 Abb., N. S., 21; S. C., 62 Barb., 85.
     
      
       21 How., 434.
     