
    In the Matter of the Application of the South Brooklyn Railroad and Terminal Company to acquire land.
    
      Supreme Court, General Term, Second Department,
    
    
      Filed October 2, 1888.)
    
    Railroad—Acquiring land—Practice when additional land desired BY ROAD IN PROCESS OP CONSTRUCTION.
    A railroad company having made a map and profile of its route which included the entire statutory width (ninety-nine feet), and no more, but in constructing the road it is found necessary to make a deep cut, seventy feet at one part of the route, and in making this cut it is necessary to take land adjacent and outside of the ninety-nine feet, no change of route being proposed by the land owners, the company can take the additional land without a new map and profile.
    Appeal from an order of the Kings county special term denying an application to appoint commissioners to appraise the value of land adjacent to the route and outside of the ninety feet limit of a railroad which was in the process of construction.
    The cut for the road at the point where the land in question was situated was required to be seventy feet deep, and was to be about seventy-nine feet wide. In order to make the banks on the side of this cut slope properly the entire width of the cut needed to be about 150 feet wide. This application was for the purpose of acquiring the additional land. It was opposed on the ground,
    
      among others, that a map and profile of the route of the road with the proposed cut should be made and filed, and the notices required by the provision of Laws 1850, chapter 140, should be given, etc., before this application could be made. Other facts are contained in the opinion.
    
      William S. Coggswell, for resp’t; Johnson & Lamb, for app’lt.
   Barnard, P. J.

By sub-division 4 of section 23 of chapter 140 of the Laws of 1850, it is provided that railroads, after incorporation, may lay out a road “ not exceeding six rods in width, and to construct the same; and for the purpose of cuttings and embankments to take as much more land as may be necessary for the proper construction and security of the road, and to cut down any standing trees that may be in danger of falling on the road, making compensation therefor as provided in this act, for lands taken for the use of the company.”

Every railroad corporation, before constructing any part -of its road, is required to make a map and profile of the route intended to be adopted in every county through which the proposed route is located; section 22.

Notice must then be given to all actual occupants of the land proposed to be taken. Fifteen days’ time is given to the owner to apply for a change of route.

The defendant made a map and profile of its route, and this map included the entire statute width, ninety-nine feet and no more. In constructing the road it is necessary to make a cub seventy feet at one part of the route. In making this cut, it is necessary to take land adjacent and outside of the ninety-nine feet. No change of route was proposed by the land owner. The question presented is whether the company can take this additional land without a new map and profile. I think it can. The statute absolutely limits the width of the road, and this strip is taken. It is not reasonable to suppose that the legislature intended that the additional lands made necessary for the security of the road, for slopes for cuttings and embankments, were, at all hazards, to be anticipated by the company. So much depends upon the material included in this cut or embankment, that nothing but actual experience can give evidence of this need of the additional land required for their safe construction.

If the cut develops quicksand, or if the rock is shelly, a need is at once presented for more land, and not certainly until then. It is a more reasonable construction of the railroad act that this additional land was to be taken, as its need was developed, after the construction was commenced. The order should therefore be reversed, with costs and disbursements, and a commission appointed to appraise the land in question.

Pratt, J., concurs.  