
    Syracuse, Lake Shore and Northern Railroad Company, Respondent, v. Lizzie L. Carrier and Others, Appellants, Impleaded with Fulton Savings Bank, Defendant.
    Fourth Department,
    March 6, 1912.
    Railroad — electric railroad — construction of line to carry high tension current — when such line not extension of railroad — consent of Public Service Commissioners — eminent domain — condemnation of lands necessary to operation of railroad.
    If the plan of an electric railroad already in operation to erect poles outside of its right of way for the purpose of carrying high tension wires around a village so as to avoid danger to the inhabitants be regarded as an extension of the railroad, the permission and approval of the Public Service Commissioners is essential and the map thereof must be filed with the Secretary of State.
    But the construction of such line bearing the high tension current in such manner as to avoid danger to the inhabitants of a village may be regarded, not as an extension to, but as an addition, accommodation or facility for the railroad necessary to its' operation within the meaning of the Railroad Law, and it may condemn lands for such purposes.
    On condemnation for the purposes aforesaid it cannot be urged that the railroad should as a condition precedent have obtained permission of the local authorities to lead the electric wires across highways, where the lands sought to be condemned do not adjoin the highways at any point and the plaintiff is the owner in fee of so much of the highway as it seeks to occupy with its line.
    
      It seems, that if such railroad intends in the future unlawfully to use its line to supply electricity to others, it may be restrained from so doing if a proper case be presented.
    Appeal by the defendants, Lizzie L. Carrier and others, from an ordei of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 6th day of June, 1911, confirming the report of commissioners in condemnation proceedings, with notice of an intention to bring up for review a judgment entered in said clerk’s office on the 14th day of March, 1911, appointing commissioners in said proceeding, and also the order of reference herein, dated the 21st day of January, 1909, the order made under section 3380 of the Code of Civil Procedure and entered in said clerk’s office on the 2d day of January, 1909, giving plaintiff possession of the premises which are the subject of the proceeding, and the order appointing commissioners herein which was contained in said judgment.
    
      Louis L. Waters [King, Waters & Page], for the appellants.
    
      William Nottingham, for the respondent.
   Robson, J.:

Plaintiff seeks in this proceeding to acquire for the purpose of constructing and maintaining thereon a double line of poles supporting wires and appurtenances for the overhead transmission of electric current at a high tension certain lands of which, it alleged in its petition, the defendants were the owners. It is a street surface railway corporation, owning and operating an interurban railroad, built on private right of way the whole distance except in villages and cities, where portions of the streets are used. The road is operated by electricity, and extends from the city of Syracuse to and through the village of Phoenix. The premises sought to be acquired in this proceeding are not, nor are they sought to be used as a part of its way for trackage or construction other than the transmission line. The course of this transmission line diverges from the line of plaintiff’s roadbed for its tracks at a point some distance south of the premises in question and does not again coincide with it until a point a considerable distance north thereof is reached. The purpose of this divergence is to avoid carrying the high tension wires through the village of Phoenix, as would be necessary if they followed the trackage location at this part of the route. Plaintiff by agreement with the several owners thereof acquired the other lands necessary for this transmission line, but was unable to agree with the owners of the strip in question for its purchase and these proceedings for condemnation were instituted.

Plaintiff’s certificate of incorporation was duly filed and recorded in September, 1905, and states that it is to form a corporation for the purpose of building, maintaining and operating a railroad and for the purpose of maintaining and operating a railroad already built. The kind of road to be built is, as stated, a street surface railroad to be operated by horse power, cable or electricity, and is to be built, maintained and operated from Syracuse to Baldwinsville in the county of Onondaga, which places will be its termini. Prior to plaintiff’s incorporation, a corporation, named Onondaga Lake Eailroad Company, had built a part of this line from Syracuse northerly to Long Branch on Onondaga lake and had obtained from the Board of Eailroad Commissioners in November, 1896, a certificate of public convenience and necessity under section 59 of the Eailroad Law as it was at that date. (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], § 59, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545.) Afterwards this line was duly extended to Baldwinsville; and the name of the corporation was changed to Syracuse, Lakeside and Baldwinsville Eailway in 1898. The property and franchises of the last-named corporation were sold upon mortgage foreclosure and the same were transferred by the purchaser at such sale to plaintiff, which had been organized for the purpose of taking over the property. Thereafter in June, 1906, plaintiff executed and caused to be filed and recorded a certificate of extension pursuant to section 90 of the Eailroad Law (as amd. by Laws of 1895, chap. 933) and pursuant to section 6 of that law (as amd. by Laws of 1892, chap. 676) made and filed a map and profile of such extension. Neither the certificate of extension nor the map and profile thereof contained any description of, or direct reference to, the location of this transmission line, nor was any notice of the proposed extension of the railroad then given to the owners of the premises in question. The construction of the roadbed and tracks, as extended, had apparently proceeded to practical completion before plaintiff made and filed in the office of the clerk of the county of Onondaga the map and profile of the proposed transmission line; which was done October 29, 1908.' This map and profile were never at any time filed in the office of the Secretary of State. This, among others hereinafter referred to, was a necessary step, provided the transmission line is to be regarded as itself an extension of the railroad. Notice of filing and that the route designated thereby passed over premises occupied by them was thereafter served on the defendant owners. Nothing was done by them to secure a change of the route proposed.

That plaintiff’s proceedings for the extension of its line of tracks and right of way therefor from Baldwinsville to and through the village of Phcenix were regular in form and sufficient for that purpose I do not understand to be now questioned by appellants. It required no certificate of public convenience and necessity from the Board of Eailroad Commissioners to enable it to take over and operate the railroad constructed and formerly operated by the Syracuse, Lakeside and Baldwinsville Eailway, title to which it had acquired as transferee of the purchaser at the foreclosure sale. (People ex rel. Third Ave. R. Co. v. Public Service Commission, 203 N. Y. 299.) At the time it took the proceedings to extend its road from Baldwinsville the Public Service Commissions Law had not been passed and the consent of the Board of Eailroad Commissioners to such extension was not required; for the proposed extension was not to “be practically parallel with a street surface railroad already .constructed and in operation; ” in which case only did the statute then in force (Railroad Law, § 59a, added by Laws of 1898, chap. 643, and amd. by Laws of 1902, chap. 226) require that such consent be first obtained. (New York Central & Hudson River Railroad Co. v. Auburn Interurban Electric Railroad Co., 178 N. Y. 75.) But if the transmission line is to be regarded as an extension of the railroad, then, since the proceedings therein were begun after the enactment of the Public Service Commissions Law, concededly the permission and approval of the proper commission were necessary before beginning the proposed extension. (Public Service Commissions Law [Laws of 1907, chap. 429], § 53.) Therefore, since power is not given to condemn lands for the purpose of any extension of an existing road unless such extension is authorized by proceedings taken pursuant to some statute, plaintiff would for that reason alone not be in a position to maintain this proceeding. (Matter of Greenwich & Johnsonville R. Co. v. G. & S. Railroad, 172 N. Y. 462.)

But it does not seem that the construction of this transmission line can properly be regarded as an extension of plaintiff’s railroad. If it is not to be considered as an extension, then plaintiff has no authority to condemn, lands therefor unless such right is given it by statute to provide for other corporate needs; and such statutory “ authority must be seen to apply exactly to the case stated.” (Matter of Greenwich & Johnsonville R. Co. v. G. & S. Railroad, supra; Erie Railroad Co. v. Steward, 170 N. Y. 172.) The Eailroad Law as it existed at the time this proceeding was begun gave plaintiff authority to acquire by condemnation real estate necessary for the “construction, maintenance and accommodation” of its railroad “in the manner provided by law.” (Railroad Law, § 4, subd. 2, as amd. by Laws of 1892, chap. 676.) By section 7 of the same law (as amd. by Laws of 1905, chap. 727) it was authorized in the same manner to acquire for use upon or in connection with its railroad “such additions, betterments and facilities as may be necessary or convenient for the better management, maintenance or operation” of its railroad. Transmission of electricity over the length of its road is concededly necessary, if the road is to be operated by that power. The overhead system plaintiff employs for that purpose requires for the reasonably economical use of the current its transmission at a high voltage by means of exposed wires. It appears without dispute that the custom in the construction of electric roads is to avoid whenever it is possible placing the high tensoin wires for any considerable distance in the streets of a city or village. One apparent and sufficient reason for this, as the evidence shows, is that in case of fire or other accident resulting in bringing the line down to the street or in case of an accidental contact with the line by telephone or telegraph wires the lives of persons in the street, or elsewhere who might come in contact with such a wire, would be menaced, and serious, if not fatal, consequences ensue. There is also an added danger in repair of telephone and telegraph lines near such a line; and even in the repair of the line itself, where telephone or telegraph wires are under it, the possibility that the men engaged in that service will not accidentally do something which will bring it in contact with the wires beneath and “ thereby cause loss of life and property to people connected with the telephone lines either at the telephone instruments or stations,” cannot be certainly guarded against. The danger from these high tension wires when strung in places where the possibility of contact with other wires is avoided is reduced to a minimum. The construction and operation of a railroad it will be conceded should be after such manner as to provide for the safety, so far as possible, of all persons likely to be endangered thereby. The construction of this transmission line so as to avoid the village of Phoenix is the safer and is also the customary construction at such points. I think, therefore, it may properly be regarded as an “ addition,” an “accommodation,” or a “facility” for plaintiff’s railroad within the meaning of those terms as used in the statute above referred to. The following statement of Vann, J., in Matter of New York, Lackawanna & Western R. R. Co. (33 Hun, 148, 154; affd., 98 N. Y. 664) seems to be apt descriptively in the present investigation: “The purpose of its incorporation is to build and operate a railroad for public use. The operation of the road is as essential as its construction. The land in question, therefore, is needed for one of the legitimate purposes of the road, and when the necessity exists and a reasonable discretion is used the courts will not interfere even if the exercise of the power to take lands under the statute is attended with extreme inconvenience and hardship to individuals.” (See, also, Matter of New York & Harlem R. R. Co. v. Kip, 46 N. Y. 546; Matter of New York Central & H. R. R. R. Co. v. Met. Gas Light Co., 63 id. 326; Matter of New York Central & H. R. R. R. Co., 77 id. 248.)

Appellants’ counsel urges that it appearing that the proposed transmission line crosses two highways plaintiff must, as a necessary condition precedent to its right to begin this proceeding, have obtained the consent of the local authorities to cross these highways with its line. In support of this position Matter of Rochester Elec. R. Co. (123 N. Y. 351) and Colonial City Traction Co. v. Kingston City R. R. Co. (153 id. 540) are cited. These cases are apparent authorities that a corporation intending to engage in the construction of a street surface railway, or an extension thereof, must obtain the consent of the proper local authorities to use and occupy streets or highways for the construction of the road, or extension thereof, before it is in a position to pursue condemnation proceedings. But if I am correct in the conclusion that plaintiff’s transmission line is not an extension of its road, but is an incidental necessity to its operation, then the provisions of the Eailroad Law, upon which the decisions above referred to are based, do not in terms apply. It may be that such consent must be obtained (and the record shows that it was in fact obtained) before plaintiff could legally cross the highways in question with its transmission line. But the land sought in this proceeding did not adjoin these highways at any point; plaintiff was the owner of the fee of so much of the highways as it sought to occupy with its line, and under the circumstances it would seem the procurement of such consent was not necessarily required to be had before plaintiff could begin this proceeding. (Matter of New York Central & H. R. R. R. Co., 77 N. Y. 248; Matter of People’s R. R. Co., 112 id. 578, 584.)

Appellants also insist that plaintiff purposes to use this transmission line to supply electricity for the use of others not in any way connected with the railroad or with its operation. It appears from the proof that the transmission line as projected and constructed is not only proper, but is necessary, for the operation of the railroad. If plaintiff shall hereafter use it for purposes so foreign to those to serve which it was by law authorized to prosecute this proceeding and injury to the rights of the defendants, or their successors in interest, should result therefrom, doubtless such unauthorized use would be restrained if a proper case was presented.

The other objections urged by appellants’ counsel have all been considered; but none of them appear to be of sufficient importance to warrant interference with the judgment and orders appealed from.

The judgment and orders should be affirmed, with costs.

All concurred.

Judgment and orders affirmed, with costs.  