
    
      In re petition of the South Beach Railway Co., App’lt, v. Fannie J. Byrnes, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 21, 1890.)
    
    ; Eminent domain—Street railroads—Change oe route.
    A street railroad, organized under chap. 353, Laws 1884, has no power to change its route under the general railroad act so as to run through private property or to condemn private lands for that purpose. When a change of route involves not only a contradiction and violation of the articles of association, but also of the character and quality of the corporation, it becomes more than a mere change.
    
      y. Appeal from order of the supreme court, general term, second department, affirming order denying application of the petitioner.
    
      Daniel Q. Thompson, for app’lt; W. W.MacFarland, for resp’t.
    
      
       Affirming 25 N. Y. State Rep., 328.
    
   Finch, J.

The petitioner seeks to condemn land for the purposes of its railway, and its right to do so is here in controversy. It was organized under the act passed May 6, 1884, entitled “ An act to provide for the construction, maintenance and operation of street surface railroads and branches thereof in cities, towns and villages,” and became a corporation by force of that act. The corporators assumed the name of the South. Beach Railway Company, and certified the objects of the corporation to be to construct and operate a street surface railway from the Arrochar station of the Staten Island Rapid Transit R. R. Go., on Richmond avenue in the village of Edgewater, along Richmond avenue to Sea avenue, along Sea avenue to the Boulevard parallel with South Beach, and thence along that Boulevard “to a point at or near Bergman’s hotel,” the whole distance being about one mile. It does not now propose to build that line, or indeed to build a street railroad at all. It has filed a map of its intended route which crosses Richmond avenue, but does not run through or along it, which does not touch Sea avenue at any point, which is located •upon púyate property, and out of the streets for the whole distance from its starting point until it reaches the Boulevard, along which it goes for a short distance to the hotel, at which it ends.

This new line is located almost wholly upon the land of Mrs. Byrnes which it is now sought to condemn, and the proceeding is defended upon the ground that the act of 1884 authorizes a construction not only upon and along streets and avenues, but also through, along and upon any private property which said company may acquire for the purpose; ” and also upon the ground that the act confers upon the corporations formed thereunder all the powers and privileges granted by the general railroad act of 1850, and so the right to change the selected route from streets and avenues to private property, and condemn the land along the new line is given.

We need not stop to discuss the constitutional question raised by the reference to the act of 1850, or deny for present purposes the right of a street railway to condemn in some cases and for some uses the land of a private owner, since admitting all tin t, without so deciding, we are yet of opinion that this proceeding cannot be maintained.

Section 13 of the act of 1850 allows any corporation organized thereunder to obtain by condemnation such land as is “ required for the purposes of its incorporation.” The power is not general and unlimited. The company cannot condemn what it pleases, but only such and so much land as the proper execution of its corporate purposes shall require and render necessary. What then were the purposes of the incorporation of the South Beach Railroad Company ? Obviously, they are those and those only which the law of its organization describes and defines, and which are certified in its articles of association, operating when filed as its charter and the measure of its authority. Referring to those we see that the corporate purposes were, not to build a railroad between specified tezmini, by the most feasible route, which is the characteristic of an ordinary razlroad, but to build and operate a stz-eet railroad, such as the act of 1884 contemplates and regulates; and not only that, but one l-unning along three specified avenues in the town of Edgewater azzd not at all through or along pi’ivate property. Such are the prescribed and declared purposes of the incoi’poration, and the compazry, it may be conceded, zniglzt have the right to acquire by cozidemnation such azid so much of private propez’ty as should be reasozzably necessary to accomplish those purposes.

Row the chief eleznent of a street railway as authorized by the act of 1884 is that it is built upon and passes alozzg streets and avenues for the cozivenience of those living or znoving thereon. Its fundamental purpose is to accommodate the street travel, and its motive power is dictated azid regulated to that end; and while consistently with its gezieral object it may need for switches or storage or stables or stations the land of pi’ivate owners, yet that necessity is only incidental to the main purpose of a line along the streets accommodating the street tz-avel. Hezn the land of Mrs. Byrnes is needed to build the main and principal part of the Jine ozfiy that it may avoid the streets altogether. The act of 1884 stamps an indelible mark upon the corporations which it organizes. The consent of the local authorities is to be obtained, and that of a certain portion of the abutting owners or in default of the last the certificate of chosen commissioners. Every step of the way, through all the conditions of the act, it plainly contemplates a railway along the streets and avenues of a village or city. The petitioner chose to organize under that act, to build and. operate the kind and character of railway which it contemplated, to declare in precise terms that the objects of its incorporation were exactly those of a street railway along named avenues of the village of Edgewater. It is very plain, therefore, that none of the land of Mrs. Byrnes,is required for the purposes of its incorporation by the South Beach Bailway Company, but that the property is wanted to enable the company to disown and abandon those purposes, and cease to be a street railway at all. If we upheld this contention it might be possible to build a street railway for a city along a hundred feet of a street and then condemn the land in the centre of the blocks all the way to its terminus. A change of route is possible under the act of 1850, where, as is usually the case, freedom to change exists under the •charter, but where a change of route involves not only a contradiction and violation of the articles of association, but also of the character and quality of the corporation, it becomes more than a mere change. It follows that since the land sought to be condemned" is not required for the purposes of the incorporation, but to enable those purposes to be substantially abandoned, the proceedings cannot be upheld. y

The order of the general term should be affirmed, with costs.

All concur, except Earl, J., absent.  