
    In the Matter of the Application of The Rochester Electric Railway Company to Acquire Lands of Jennie S. Wilkin et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed October 28, 1890.)
    
    1. Eminent domain—Railroads—Laws 1884, chap. 252—Highways— Turnpike company.
    The “local authorities,” whose consent by Laws of 1884, chap. 252, must be obtained before taking a highway for railroad purposes are the officers of the city, town or village whose duties and powers relate to the supervision, care and maintenance of the streets or highways. A turnpike company is not such a local authority.
    2. Same—Consent of highway commissioners must be had.
    The highway has not ceased to be such because of becoming a turnpike, and all authority of the highway commissioners has not been taken away by that change, and their consent is an essential prerequisite to the right to maintain a proceeding for taking such highway, under the statute, for railway purposes.
    3. Same.
    It is as necessary to file a map clearly pointing out the intended route in the case of street railroad as that of á steam railroad.
    Appeal from judgment of the supreme court, general term, fifth department, reversing order of special term, granting petition of The Rochester Electric Railway Company to acquire land of respondents for the purpose of a railway.
    The petitioner was organized under chap. 252, Laws of 1884. In November, 1887, it acquired, for a consideration, the consent of the Rochester & Charlotte Turnpike Company for the construction and operation of a street surface railway on the highway leading from Rochester to Charlotte. This turnpike company had been organized for the purpose of maintaining this highway as a turnpike, with a charter for thirty years. It had also acquired from adjoining land owners the right to a strip of land on each side of the highway for a bridle path. The consent given to this petitioner covered the use of a portion of the existing bridle path. In August, 1887, the petitioner filed a map and profile, indicating by a line its proposed route upon the bridle path portion of the highway. In May, 1888, it instituted and carried through proceedings for the condemnation of certain lands required for the construction and operation of its road against numerous "property owners, and eventually built and put in operation an electric railroad. The present proceeding was brought in November, 1889, and by it petitioner seeks to acquire the title to the lands of the respondents for the purpose of a railway from Rochester to Charlotte and Lake Ontario. The petition alleges incorporation, a survey of a route, an inability to purchase the right of way, and describes by metes and bounds the strip of land required on its railroad and which is upon the eastern edge of the bridle path. It also alleges the making and filing of a map and survey and service of notice upon land owners. It makes no mention of the railroad it had previously built nor of the previous proceedings nor connects this with the previous enterprise. No map was filed as alleged; and no other map was ever filed except the first one, to which no reference is made in the petition. These proceedings were opposed by the land owners, who, by appropriate denials, put in issue the allegations of the petition. The application was granted by the court' at special term upon a referee’s report; but upon appeal to the court at general term the order below was reversed and the application for the appointment of commissioners to appraise the value of the lands sought to be taken was denied. From that determination the petitioner has appealed to this court.
    
      David Hays, for appl’ts; Quincey Van Voorhis, for resp’ts.
   Gray, J.

The land owners have opposed these proceedings of the petitioner to acquire their lands upon various grounds, but it is only necessary to discuss two propositions which in limine seem successfully to assail the right of this corporation to take by condemnation the respondents’ property for its corporate uses. The respondents say that the petitioner has not obtained the consent of the local authorities of the town Óf Greece and that it has not made and filed a map or survey of the proposed route. To the first of these objections the petitioner answers that the portion of the highway in question lies neither in the city nor in a village, and that the statute has failed to specify who are the proper “local authorities ” when the highway is in a town and has left that question open. It relies upon the consent obtained from the Turnpike Company as all sufficient and as emanating from an authority in actual control of the highway. In this contention the petitioner, I think, is clearly wrong. Chapter 252 of the Laws of 1884, under which this corporation was organized, was passed^ to provide for the construction, extension, maintenance and operation of street surface railroads, in cities, towns and villages.

By its third section, it was enacted that any company organized under it, as well as any theretofore organized, “ may construct, maintain, operate, use and extend a railroad, or branches, on the surface of the soil, through, upon and along any of the streets * * * or highways of such cities, towns and villages, and also through * * * any private property, which said company may acquire for the purpose, * * * provided that the consent, in writing, of the owners of one-half in value of the property bounded on and the consent, also, of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railroad * * * be first obtained.” Then follows a provision that in cities the common council, and in villages the ‘board of trustees shall be the local authorities to give consents.

The argument of the appellant is that, the statute being silent as'to who shall be the local authority for the purpose of consenting in towns, such consent may proceed from the authority in actual control; that the Turnpike Company is such an authority and exclusively operates and controls the highway, and only its consent was necessary. There are two objections to this argument. In the first place it disregards the true, or legal, significance of the term “ local authorities,” as used in the act, and, in the next place, it assumes that the highway commissioners’ authority has been wholly divested by the organization and operation of the Turnpike Company. The “ local authorities,” to whom the statute refers as the source of the consent to be given, are the officers of the city, town or village, whose duties and powers relate to the supervision, care and maintenance of the streets or highways, and it would be a misuse of language to attach any other sense to those words. It is very evident, by reference to the connection in which the legislature frequently uses the term “local authorities,” that what is meant is, those officers on whom the administration of the government of the particular political subdivision of the state, by virtue of their office, devolves, in relation to the subject-matter of the legislative provision. I think we need not delay to enforce this seemingly self evident proposition by abundant illustrations from the laws. A turnpike corporation is not a local authority, and its consent is only good for what it may be worth relatively to its own rights and interests in the matter. The highway has not ceased to be such because of becoming a turnpike, and all authority of the highway commissioners has not been taken away by that change. Walker v. Caywood, 31 N. Y., 51.

Whatever the interests and however exclusive the rights and comprehensive the dnties of the turnpike corporation over the highway, the administrative duty of the highway commissioners of the town remains unimpaired, in so far as its exercise may be demanded for the preservation and protection of the interests of the public. These companies are private corporations, whose organization is, primarily and principally, for private gain, and shall they be deemed conservators of the public interests ? That would be an absurd proposition. Supervision and control over the public highways are vested in the local authorities to prevent illegal encroachments upon the public highway by the turnpike company, or from any other direction. Walker v. Caywood, supra. The highways are held in trust by the state for the public, and they are controlled through the instrumentalities of local authorities. Section 1. art. 1, title 1, chap. 16, part 1, N. Y. Rev. Stat. Though a turnpike corporation acquires a right to the use and control of the highway for its purposes, some duty of supervision and some control still remain in these local authorities. The adjoining land owners and the public generally are interested in having the highways maintained suitable for the public use and in preventing their diversion to other uses, or their subjection to other burdens until there shall exist some controlling reason and a due authorization for the new use. It cannot properly be said that this turnpike company, this private - corporation, has so far succeeded to the powers and rights of the town officers as to be able to determine such questions for and to release the interests of the public. The highway commissioners are vested with the general control over the public highways, and they have a duty to perform towards the public in connection with their proper maintenance as such. The next phase of the question which presents itself, then, is, if the consent of the highway commissioners, as the local authorities having control over the highway in question, has not been obtained, is that consent an essential prerequisite to the right to maintain this proceeeing ? That would seem to be the inevitable conclusion, based upon the language of the statute, in its plain reading, and it is, I think, fortified by reasoning and by authority.

The authority conferred by the act of 1884 is to construct and operate the railroad through the street or highway, and to acquire private property for that purpose, provided that the consents of the property owners and the local authorities be first obtained. The language imports a condition to the right of the company to proceed after its, organization in the work of construction. The consents which are to be first obtained are to the construction and operation of any railroad at all, as proposed. Its condition, after the work of formal organization is complete, is still an incomplete or imperfect one. The legislature, in the general law of 1884, followed the. constitutional requirements as to the consents to be obtained from property ownters and from the local authorities. The design of the people, as manifested in the constitution and again in this act, was to guard the public generally against these invasions of streets and highways by railways under authority of legislative grants, and the protection was provided for by the imposition of the conditions in every case of a projected street railroad that the project should be approved by the local authorities and by a certain pinportion of property owners, with the permission, if the requisite consents of the property owners were refused, to apply to the court, whose determination might stand as a substitute for such consents. Sufficient vitality and strength to go on with and to construct a railroad do not exist in the newly formed corporation until infused by the consents of the local authorities and property owners. Until that moment when the company can assert that the statutory conditions of its rights to be and to do are fulfilled, it cannot strictly nor justly be said that it is in a position legally to deprive a land owner of his property.

By an organization under the act it has become a corporation, but with no authority as yet to construct and operate a railroad upon a street or highway. Its right to the exercise of that franchise is still inchoate, and does not become a vested right until after the consents specified by the statute have been obtained. It may be a corporation, but it has no power to take a step in the direction of occupying the street or highway, because it is in effect inhibited by the condition of its charter from doing so while the consents to the appropriation of the street or highway to railroad uses are lacking.

In the Matter of the Thirty-fourth Street Railroad Company, 102 N. Y., 343; 2 N. Y. State Rep., 33, objections were made by the property owners to the granting of the company’s application for the appointment of commissioners to determine whether the proposed road ought to be constructed, and one of them was, that as the route was in part coincident with the routes of existing street railroads, their consent had been refused. As the act provided that the consent of other companies should be obtained in such cases, the point was made that it would be futile to proceed in the matter while the consents were lacking. Though that consent was needed by the company before it could occupy the street, Judge Andrews’ opinion in the case proceeded upon the theory that it was an independent condition and it was not an element of the authority of the court to proceed upon the particular matter before it That proceeding was instituted to meet that condition of the act, which required that if the consent of property owners was refused, the determination of the court in lieu thereof should be had. The only prerequisite to such an application, as Judge Andrews held, was “ an inability to obtain the consent of property owners.” As it was not a proceeding to take private property by condemnation, but was a step in the direction of obtaining one of the consents needed, as preliminary to the work of construction and operation, his language, that the act did not prescribe the order in which the several consents shall be obtained, obviously has reference to the consents which were precedent conditions to operation of the company’s franchises. In his opinion he holds that there were three precedent conditions, to which the right of the company to construct and to operate was subject; namely, “the consent of the local authorities, the consents of property owners, or in lieu thereof the determination of commissioners in its favor, and the consent of the companies having coincident routes.” The opinion bore upon the question of whether the proceeding for the appointment of commissioners to determine as to the petitioner’s project, as a substitute for the required consent of property owners, ought to be maintained, and it may be distinctly read as an authority in support of the proposition that precedent conditions a're affixed by, the act to every charter and their fulfillment must be shown before construction and operation can be initiated, or steps thereto taken by the corporation.

The opinion of this court in the Matter of the Application of the N. Y. C. & H. R. R. Co. to take certain lands in New York city, 77 N. Y., 248, contains nothing adverse to these views. That was a proceeding under the general railroad act to acquire a tract of land along the river front which was intersected by streets, and the point was made that the order: appointing the commissioners, etc., did not give the petitioner control of the streets of the city, and the petitioner might not be able to carry out its plans, anti hence the condemnation of private interests in land should not be permitted. Miller, J., there said that “ there is no rule which requires that under the circumstances presented, where different rights are essential in order to acquire an interest in and for railroad purposes, that the acquisition of one interest should precede the other, or that proceedings should be had to acquire each of them at the same time.” The learned judge held that the consent of the city was not necessarily preliminary to the acquisition of the land of the appellants, and might be lawfully obtained after the right to the land has been acquired. The provision of the general railroad act, referred to, was not in the shape of some condition inhibiting, or suspending, the operation of the chartered franchises of the company to construct and operate its railroad. It was merely a limitation upon the construction to be placed upon the statute. The provision was that nothing contained in the act should be construed as authorizing the construction of any railroad in the street of g city without its assent. The effect of that limitation was not to prevent any construction and operation of the railroad, but, where the railroad company, in the operation of its franchises, sought to make any use of streets in a city, the general authority of the statute should not be deemed to extend to that use without the assent of the municipality. So the opinion in the case cited has no relevancy to the case at bar. We are furnished with a judicial construction of the force of language precisely similar to that which gives rise to our present discussion.

In the Matter of tie Kings County Elevated Railroad Company, 105 N. Y., 97; 7 N. Y. State Rep., 186, it was sought to appropriate an interest in lands to the use of the railway, and the proceeding was there, as here, to obtain the appointment of commissioners of appraisal. The petitioner there was organized under chapter 606 of the Laws of 1875 (commonly known as the rapid transit act), and the point, inter alla, was taken, in opposition to the right of the petitioner to maintain the proceeding, that-it never obtained the consent of the local authorities having control of that portion of the street upon which it was proposed to construct the railway. The rapid transit act provided that the consent of the owners of one-half the property, etc., * * * and the consent also of the local authorities having the control of that portion of the street or highway upon which it is proposed to construct or operate such railway be first obtained.”

Judge Danforth, who delivered the opinion in that case, in the course of it, construed that provision to mean that until the consent of each was obtained nothing could be done by way of construction.” That eminent jurist held that “the power contingently conferred by the legislature to construct the railway became absolute ; for the conditions imposed upon its exercise had both been performed. The abutting owners had consented and so had the municipal authorities.” It would be manifestly unjust to hold otherwise as to the necessity of first showing compliance with these constitutionally imposed conditions before a proceeding can be maintained which has for its end the taking of private property against the consent of the owner. His interests should not be permitted to be affected by the burden and cloud of such proceedings, when it does not appear that the right to construct its railroad is yet vested in the corporation.

The further ground taken by the property owners, in their efforts to oppose the appropriation of their property, is that a map should have been filed by the petitioner. Authority to acquire private property for its railroad purposes is conferred upon petitioner by the act of 1884, and the mode of its exercise is through the proceedings described in the general railroad act of 1850. The corporation, which is formed under the act of 1884, is given the powers and privileges granted by that general act, and reference ..to its provisions shows in what manner and by what special proceedings real estate may be acquired, when there is an inability to acquire it by agreement.

The act of 1850 details what the petition which initiates the proceedings must contain, by way of allegation, for the purpose, and what, therefore, must be proved to the court. Among other things, the petition must allege that the company has made a map, or survey, by which its line or route is designated, and that they have located their road according to such survey and filed certificates of such location in the clerk’s office of the county. This allegation was denied, and it was not proved, and it is not pretended that any map was made and filed of the route in connection with which this proceeding is sought to be maintained. The appellant argues that a map is not required in the case of street railroads; or if it is, that the one filed upon the previous proceeding of the petitioner was sufficient. The point is untenable. For the validity and force of such a proceeding, it is essential that all the steps pointed out by the general statutes should be strictly followed. It may' be that in this particular case no prejudice would be worked by the failure to make and file a map; but the question is not of the particular necessity, but it is one which goes to the foundation of the right of the petitioner to maintain the proceeding. Where it is sought by resort to the special proceedings authorized by the statute to take lands in invitum the owner, they must be followed strictly or they are unavailing. It is only where the steps are all taken which the sovereign power has prescribed that title to the private property is transferred from its owner. The rule is too familiar to require discussion at this day that a statute authority in derogation of the common law to divest the title of one must be strictly pursued, and all prescribed requirements strictly observed and conformed to, or it will be ineffectual for the purpose. 4 Hill, 76-86; 10 N. Y, 329 ; 78 id, 362, 366; 96 id, 351, 357. The fact that the proceeding is for the purpose of acquiring private property is argument enough, if any argument were needed in behalf of a statutory prescription. The land owner is entitled to the notice provided for and to the opportunity of knowing exactly by the map and survey which has been made and filed, where and how the line or route of railroad is projected.

Such knowledge is evidently of so practical and available a character that it is provided for in order to enable the property owner the more readily to determine the question of acquiescence, or of opposition. But discussion is needless on this head. The act of 1884 refers the company to the provisions of the general act of 1850 for purposes of acquiring private lands, and no reason in law exists why those provisions should not be as binding and the protection to the private citizen be as sacredly maintained in the case of a street railroad as in that of a steam railroad. The rule is a salutary one, and should be respected for that reason, as well as for its absoluteness under the statute.

For the reasons expressed in the foregoing opinion, the order appealed from should be affirmed, with costs.

All concur (Earl, J., in result on last ground discussed in opinion), except Reger, Oh. J., not voting. 
      
       Affirming 32 N. Y. State Rep., 1.
     