
    In the Matter of the Petition of The South Beach Railroad Company, for the Condemnation of Lands of James J. Byrnes.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    Street railroad—Construction—Power to change route—Laws 1884, chap. 252.
    Where a railroad corporation obtains the right to construct a street rail road on certain streets by getting the proper consents therefor, as provided by Laws 1884, chapter 252, it has no power to change its routes, so as to leave the streets, and go through private lands, under the general railroad law.
    Appeal from an order made at the Richmond special term, denying the application of the petitioner.
    
      Thompson, Ackley & Kaufman, for appl’t; Tracy, MacKarland, Boardman & Platt, for resp’t.
   Barnard, P. J.

Chapter 252, Laws of 1884, does not authorize the construction of the road through the lands of Mr. Byrnes. The provisions of the act plainly indicate its scope and purpose. It is called an act to provide for street surface railroads and branches. The property bounded is to consent or in case of refusal a commission is to be appointed. The local authorities having control over roads are to consent. Mo road is to be constructed where there is another street railroad without its consent. A map of the roads is not needed when the charter gives the routes of the roads. The clause in section 1 of chapter 252, Laws of 1884, making these corporations subject to the general railroad act are not designed to require a map. The purpose of a map is wholly taken away as to street railroads. If a majority consent or a commission authorizes it, no one else can object. There are liabilities of railroad corporations which would apply to both kind of railroads and there is no doubt do apply by force of this clause.

The petitioner got a right to a route on certain streets by getting the proper consents therefor, and it had no power to change its routes so as to leave the streets and go through private lands, under section 23 of the general railroad act. The power to change the route, under the general railroad act, has no relevancy to a street railroad, where something-more is needed than the two-thirds vote of the directors. If a route may be changed from one street to a private person’s land it may be changed from one street to another without the consent of the land on the changed route or the consent of the local authorities. The act of 1884, does not authorize a route in whole or in part acquired by condemnation.

The order should therefore be affirmed, with costs.

Dykman, J. concurs.  