
    Matter of application of The Staten Island Railroad Company to acquire lands.
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    1. Railroad company—Eminent domain—Laws op 1850, chap. 140,
    §§ 81, 25,
    The statute authorizing the formation of railroad corporations confers powers upon such as are organized under its provisions to acquire lands by the exercise of right of the eminent domain, for its prospective as well as present uses, provided its necessities for such use in the immediate future are established beyond a reasonable doubt.
    2. Same—Public use—Foreign corporation.
    The mere fact that the condemnation of land will benefit a foreign corporation, is no reason against such condemnation, provided that the party petitioning therefor presents a case within the provisions of the statute.
    Appeal from an order of the supreme court, general term, second department, affirming an order made by Mr. Justice Barnard, adjudging that the lands sought to be condemned were necessary for the uses for which they were claimed by the petitioners, and appointing commissioners of appraisal. Application was opposed upon the ground that the lands sought to be acquired were not necessary for the purposes of the petitioners, and that the intended connection to be made between it and the Baltimore and Ohio Eailroad, a foreign corporation, which would increase the amount of traffic upon the petitioners road to such an extent as to make the land sought to be acquired necessary to its use, was conjectural and uncertain.
    
      D. O’Brien, attorney general, A. Schoonmaker and Thos. W. Fitzgerald, for app’lt; Stewart & Boardman, for resp’ts.
   Etjger, Ch. J.

Many of the questions discussed in the learned brief of the appellant’s counsel do not seem to be open for consideration here, as they were neither raised in the court below nor authorized by the order under which they were permitted to defend. Aside from a request to dismiss the proceedings upon the ground of indefiniteness in the description of the land proposed to be taken, and which is not now raised by counsel, we find no objection in the record to the adjudication under consideration, except that of the alleged insufficiency of the evidence to show that the property proposed to be taken was required for the purposes of the petitioning corporation. A motion was made to dismiss the petition for that reason, which was denied, and the appellant excepted to this decision. The exception presents the only material question exhibited by the record before us.

The appellant was restricted to this ground of objection by the terms of an order vacating pro tanto an adjudication already made in the proceedings, and was, therefore, precluded from raising any other ground of defense. Questions as to the corporate organization of the petitioning company, its action in authorizing these proceedings, the right of a railroad company to acquire lands under navigable water as against the state, and thq rights and interests of littoral owners in such lands are, therefore, all excluded from the controversy by the terms of the order opening the appellant’s default.

The original order of condemnation appointing commissioners to appraise the value of the land proposed to be taken constituted an adjudication in favor of the respondent upon the questions involved, disposing of every question which might have been raised in opposition thereto except that allowed to be litigated by the order referred to.

It was conceded by the petitioners upon the hearing, that the lands in question were not required for the present uses, and it is strenuously contended therefrom by the appellant that the petitioner has not made a case for condemnation, or such a case as establishes- a reasonable probability that such lands will be required for its uses in the future. It is quite obvious that the beneficial exercise of the power of acquiring property for public uses cannot be enjoyed unless allowed in anticipation of the contemplated improvement, and it is, therefore, well settled in this state that the mere fact that the land proposed to be taken for a public use is not needed for the present and immediate purpose of the petitioning party, is not necessarily a defense to a proceeding to condemn it.

The statute authorizing the formation óf railroad corporations confers power upon such as are organized under its provisions to acquire lands by the exercise of the right of eminent domain, not only from individuals, but also from the state, for its prospective as well as present uses, provided its necessities for such use in the immediate future are established beyond reasonable doubt. Lansing v. Smith, 8 Cow. 146; S. C., 4 Wend., 9; Laws of 1850, chap. 140, § 21; Rens, and Sar. R. R. v. Davis, 43 N. Y., 137; In re the Matter of the N. Y. C. and H. R. R. R. Co., 77 id., 249. The exercise of this power is in derogation of individual rights, and is always burdensome, and often injurious, to the owner beyond the power of pecuniary compensation to wholly redress, and should be allowed only when the necessity for the land clearly appears, and its-proposed use is clearly embraced within the legitimate objects of the power.

The only question, therefore, in the case is whether the evidence shows such a case as renders it probable that these lands will be required within a reasonable period; for the uses of the petitioning corporation.

No evidence was offered by the appellant upon the question at the trial, and it relies wholly for its defense upon the insufficiency of the proof given by the petitioner to establish a case for condemnation. The special term found as a fact that the land was required by the petitioner for the purposes of its incorporation, to wit: For tracks, switches, sidings and depot grounds, whereon cars may be moved, loaded and unloaded, stored, received and dispatched ; for freight sheds, wherein freight may be received, and stored, and then loaded into cars and delivered to consignees, and for necessary terminal grounds, for the purpose of the incorporation of said company, and for the purpose of constructing and operating its railroad.” It was further found that such use was not required for the purpose of its local traffic, but for the purpose of enabling it to fulfill the obligations of a contract made between it and the Baltimore and Ohio Railroad Company, whereby it had bound itself to furnish to such company accommodations over its road for transporting freight, passengers, express and mail matter between the proposed termini of such Baltimore and Ohio road, at Elizabethport, in New Jersey, to and from the city of New York. We think the evidence fully supported these findings.

These proofs show that the petitioner is a domestic railroad corporation operating a line of road on Staten Island, which has been mainly used heretofore for local purposes, but which it is now proposed to utilize as a connecting link between the system of railroads known as that of the Baltimore and Ohio and the port and city of New York. The vast increase of business which such a connection will occasion to the petitioner’s railroad, and the necessity of increased facilities for handling it, is too obvious to be disputed. The benefit to be derived from such a connection, not only to the public, but also to the petitioner, is clearly apparent from the evidence, and renders the object for which the appropriation of the land in question is sought a public use within the meaning ascribed to that term by the decisions of this court. In re N. Y. and H. R. R. Co. v. Kip, 46 N. Y., 547; In re N. Y. C. and H. R. R. R. Co., 77 id., 263.

The fact that the condemnation of the land in question is also earnestly desired by a foreign railroad corporation, and will inure largely to its benefit, furnishes no reason for denying the relief asked for by the petitioner, provided it has brought itself within the language of the statute authorizing such a proceeding. Matter of Petition of N. Y. L. and W. R. R. Co., 99 N. Y., 21.

It is claimed that because certain structures which are required to be built in order to form the connection between the two systems of railroads are not yet begun or completed that their construction is conjectural and uncertain, and does not afford a sufficient degree of probability of their ultimate construction as authorizes the court to condemn the .property in question for its proposed uses. The principal structures referred to are the extension of the petitioner’s railroad over a bridge or viaduct, to be erected across Arthur’s kill, which divides Staten Island and New Jersey, and the building of a railroad track by the Baltimore and Ohio Railroad Company, from Bound Brook to Elizabethport in New Jersey, a distance of about sixteen miles, connecting the roads of the contracting parties. The evidence shows that the petitioner is pound by its contract with the Baltimore and Ohio Railroad Company, to construct such bridge and perfect its facilities for accommodating the increased traffic within one year from the date of the contract, viz.: October 28, 1885, unless obstructed and delayed by hostile legal proceedings or want of lawful authority to do so, and in case of delay from such causes, then with ah reasonable diligence after such obstacles have been removed and authority obtained. The same contract provides that the Baltimore and Ohio Eailroad Company, shall within one year from the date thereof, or if delayed by hostile legal proceedings, with ah reasonable diligence, perfect its connection at Ehzabethport with the railroad of the petitioners. It thus appears that the contemplated connection between the petitioners’ railroad and the vast system of railroads controlled by the Baltimore and Ohio company is assured by contract obligations between parties interested in making such connection, and presumptively able to comply with their obligations if no legal obstacles prevent. It also appears that the contracting parties have already built and leased lines stretching over several hundred miles for the purpose of carrying out the purpose in view, and that the Baltimore and Ohio Eailroad Company has\ already, in the performance of its contract, assumed habilities for the Staten Island Eapid Transit Eailroad Company, to the amount of $2,500,000, and has advanced and expended money in the purchase of property on Staten Island and elsewhere, and in extending its tracks for the purpose of the traffic contemplated to be carried on over the petitioners’ road of upwards of $1,000,000. The pecuniary expenditures made, and the liabilities assumed by both of the contracting parties, as well as the manifest interest which both of them have in carrying into effect the projected enterprise, afford the most conclusive assurance that this application is made in good faith and for the sole purpose of acquiring property for the use of the petitioning railroad company. All of the testimony taken on the hearing concurs as to the necessity of the appropriation of all of the property described for the proposed use, and we have been referred to no circumstance appearing in the case which seems to cast any suspicion upon the motives of the petitioner in preferring the application.

While the limitations under which the respondent is permitted to defend this proceeding do not permit it to raise any questions as to the authority of the court to entertain the proceeding and grant the relief sought, it may be proper to say that it seems to be fully authorized by sections 21 and 25 of the general railroad act, and the cases of Lansing v. Smith (8 Cow, 146); S. C., Appeal (4 Wend., 9), Gould v. Hudson R. R. Co. (6 N. Y., 524), and the Matter of the Application of the N. Y. C. and H. R. R. R. Co. (77 id., 248).

It is also proper to say that the enactment of Congress during the last session, of a bill authorizing the contracting parties hereinbefore referred to, to build a railroad bridge or viaduct across Arthur’s kill, has apparently removed any legal objections to such a structure, and rendered it quite certain that the connections contracted for between such parties will be made, and the property sought to be obtained by this proceeding devoted to the purposes alleged in the petition.

The order should be affirmed, with costs.

All concur, except Miller, J., absent.

Order affirmed.  