
    Erie Railroad Company, Respondent, v. Mary Anna Steward and Others, Appellants.
    
      ^^iEminent domain —a railroad, must show legislative authority for its exercise'—it cannot thus acquire land for an additional main line.
    
    A railroad company which seeks to take property by proceedings in invitum, must show legislative authority therefor, and the statute which is alleged to confer such authority must be strictly construed.
    A railroad company which has located its route and operated its road thereon for many years, has no power to acquire by proceedings in invitum land upon which to construct a double-track ‘ ‘ cut-off ” running in the same general direction as the existing main tracks for nearly three miles, and a half mile distant therefrom, and thus to maintain one main road on two different lines, the final purpose of the “ cut off” being to avoid the sharp curves 'and the steep grades of the existing main tracks, to expedite the dispatch of business and to save expense.
    The provision of the Railroad Law (Laws of 1890, chap. 565, §4, subd. 3, as amd. by Laws of 1893, chap. 676) delegating to railroad companies the right to exercise the power of eminent domain for certain purposes, does not apply to such a case.
    Appeal by the defendants, Mary Anna Steward and others, from a final order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 8th day of April, 1901, confirming the report of commissioners appointed in condemnation proceedings, with notice of an intention to bring up for review a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 4th day of December, 1900, upon the decision of the court rendered after a trial at thé Orange Special Term confirming the report of a referee. '
    
      
      Howard A. Ta/ylor [Origen S. Seymour and Wolcott P. Robbins with him on the brief], for the appellants.
    
      Ohartes F. Brown [Henry Bacon with him on the brief], for the respondent.
   Jenks, J.:

The plaintiff seeks to take property in immitum, therefore, it must show legislative authority. (Matter of Niagara Falls & Whirlpool R. Co., 108 N. Y. 375; Rensselaer & Saratoga R. R. Co. v. Davis, 43 id. 137, 146.) The statute which is alleged to confer it is strictly and not liberally construed. (Matter of Poughkeepsie Bridge Co., 108 N. Y. 483; Matter of Water Comrs. of Amsterdam, 96 id. 351, 357.) In Matter of N. Y. & H. R. R. Co. v. Kip (46 N. Y. 546) it is said that such a statute must receive “ a reasonably strict and guarded construction, and the powers granted will extend no further than expressly stated, or than is necessary to accomplish the general scope and purpose of the grant. If there remains a doubt as to the extent of the power, after all reasonable intendments in its favor, the doubt should be solved adversely to the claim of power.” The plaintiff asserts power under several provisions of the statutes. First, it contends that it may condemn this land under the provision of the Railroad Law (Laws of 1890, chap. 565, § 4, subd. 2, as amd. by Laws of 1892, chap. 676) which authorizes such a corporation “to take * * * voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroad, and to acquire by condemnation such real estate and property as may be necessary for such construction, maintenance and accommodation.” This provision is a subdivision of section 4, which itself expressly makes such power “ subject to the limitations and requirements of this chapter.” There is force in the contention that this expression may be understood as a general legislative declaration that the power of eminent domain is delegated to a railroad corporation; but to justify the exercise of this power, it must be shown that the proposed action is within some subsequent and specific provisions of the statute. If this proceeding cannot be justified under the general provision, when read with the subsequent limita^ tians and requirements; this affords no argument for the contention that the general provision can or should be freed therefrom. For if no authority can be shown for' this particular condemnation, ■ then there is but a casus omissus. If, however, this provision is an isolated and a complete authority for the exercise of eminent domain, the question then presented is whether the scheme of the plaintiff is within the purview of its terms. The apt words are “ as may be necessary for such construction, maintenance and accommodation,” referring- to the preceding phrase “ construction, maintenance and accommodation of its railroad.” The difficulty that confronts the plaintiff at the outset is the fact that long ago this corporation located its route, and thereafter, and for many years past, has operated its road upon, that route so located. How, then, can it-contend that the land aimed at is necessary in the construction, or maintenance, or accommodation of its road. It may be that the proposed work, when executed, would properly be described as construction,” its continuance as “ maintenance,” and its use as “ accommodation; ” but this is far from the proposition that the defendants’ land is necessary for the construction, maintenance and accommodation of this railroad as it exists, with its route, and its tracks thereon, and its road in operation all for many years past. The land is not necessary for the construction or the maintenance or the accommodation of the railroad as these terms are used in the statute. ' It is sought for a far different purpose. It is intended to lay thereon the tracks of a .different route additional.to the road that has been operated, is now operated, -and that is to be operated'. In the words of. its chief engineer, it is an attempt to maintain the main road on two different lines,” both to run in the same general direction for nearly three miles, and yet half a mile apart. So far as the building of the proposed line is a second and further location of a second and further, route, I have not seen the statute that' permits the plaintiff to do this thing, and the authorities are against it. (Matter of Poughkeepsie Bridge Co., supra ; Mason v. Brooklyn City & Newtown R. R. Co., 35 Barb. 373 ; Hudson & Delaware Canal Co. v. N. Y. & Erie R. R. Co., 9 Paige, 323, both cited and approved in Matter of Poughkeepsie Bridge Co., supra ; People v. New York & Harlem R. R. Co., 45 Barb. 73; Wood Railroads [Minor’s ed.], § 271; Taylor Corp. §§ 162a, 164; Brigham v. Agri cultural Branch R. R. Co., 1 Allen, 316 ; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358, 366.) Matter of Staten Island Rapid Transit Co. (103 N. Y. 251), the only case cited by the respondents upon this contention, is not authority. The sole question raised in that case was the sufficiency of the evidence to show that the property sought to be condemned was required for the purpose of the corporation, while the matter decided was that it • was not necessarily a defense to condemnation that the land was not needed for present and immediate purposes.

Second. It is contended that this land may be taken for this proposed double-track route of nearly three miles long under the powers conferred by section 7, subdivision 3, of the Railroad Law, as amended by Laws of 1892, chapter 676, which reads: Where it shall require any further rights to lands or the use of lands for switches, turnouts, or for filling any structures of its road, or for constructing, widening or completing any of its embankments or roadbeds, by means of which greater safety or permanency may be secured, and such lands shall be contiguous to such railroad and reasonably accessible to the place where the same are to be used for such purpose or purposes.” Clearly the proposed work is not in constructing or widening or in completing its embankment or roadbed, for the tracks are to be laid at a mean distance of half a mile from the present roadbed. The purpose contemplated is not a “ switch,” which is defined as a “ device for moving a small section of track so that rolling-stock may be run or shunted from one line of track to another,” and “ in railroads, in its simplest form, two parallel lengths of rails joined together by rods, pivoted at one end, and free to move at the other end, forming a part of the track at its junction with a branch or siding.” (Standard Diet.; Century Diet.) Nor is the proposed construction a “ turnout,” which is a short railway side-track on which one train may be. shunted to permit another to pass on the main track,” “ a short sidetrack in a railway, designed to enable one train to pass another.” (Standard Diet.; Century Diet.) ■ The new tracks are to be straight where the present tracks are tortuous, and the final purpose is to use all four rails for the traction of cars, to the greater dispatch of business and to the saving in part of the expense of a pusher engine,. which is required on the present track because of its sharp curves and steep grades. Mr. Moore, the plaintiff’s engineer, gave a practical definition of the construction that incidentally distinguished when he testified: “ The cutoff, will be connected with the present tracks by a switch or turnout. That connection is what in railroad parlance is called a switch or turnout.” The construction seems to be what is technically called a “ cut-off.” This is defined to be a shorter and straighter road by which the length of a course or passage is reduced. (Standard Diet.; Century Diet.) The defendants’ engineer, Mr. Parsons, thus describes it, and “ cut-off railroad ” is* the descriptive' term employed by the plaintiff’s chief engineer," Mr. ¡Buchholz, in his letter,, defendants’ Exhibit B. Haight, J., in his dissenting opinion in People ex rel. Steward v. Railroad Comrs. (160 N. Y. 202, 213), in speaking of this very construction, says that the Erie railroad devised a plan for a “ cut-off road.”

Third. It is contended that the plaintiff may proceed under subdivision 4 of section 7 of the General Railroad Act, as amended by Laws 'of 1892, chapter 676. Section 7 in part provides that “ It shall ¡also have such right in the following cases * * * 4. Where it ¡shall require any further right to lands or to the use of lands for the flow of water occasioned by railroad embankments or structures now in use, or hereafter rendered necessary, or for any other purpose necessary for the operation of such railroad, or for any right to take and convey water from any spring, pond, creek or river to such railroad, for the uses and purposes thereof, together with the right to build or lay aqueducts or pipes for the purpose of conveying such water, and to take up, relay and repair the same, or for any right of way required for carrying away or diverting any water, stream or floods from such railroad for the purpose of protecting its road or for the purpose of preventing any embankment, excavation or structure of such railroad from injuring the property of any person who may be rendered liable to injury thereby.” It is quite evident from the nature of the context and the wording of the phrase that the purpose contemplated relates to some adjunct necessary to the road as it is located and operated, such as land for a yard, or for a freight station, or a site for a, more capacious passenger station. (Matter of N. Y. C. & H. R. R. R. Co. v. M. G. L. Co., 63 N. Y. 326, 330, 331; Endl. Interp. Stat. § 86.) There is a manifest distinction between the ' construction and the operation of a road, and I think that new construction of this character — the building of a cut-off road — does not fall -within the words “ or for any other purpose necessary for the operation of such railroad.” If the press of business or the economical administration of the corporate affairs can find legislative warrant in the words “ necessary ” and “ operation ” for the exercise of eminent domain over lands, for the building of such a projected cut off for three miles, why not, then, if the same “ necessity ” exist, for thirty miles, or why may not a corporation under such a plea based upon such authority gridiron town or country with its rails % The learned counsel for the plaintiff cites numerous authorities. Matter of New York Central, etc., R. R. Co. (67 Barb. 426) is a decision at the Special Term. I cannot find that it has ever been reviewed or cited. There is, however, a manifest distinction in my mind between the salient words up for judicial interpretation in that case, which were “for the purposes of its incorporation” and the words “£ necessary to the operation of such railroad.’ ” The facts in that case were that the road owned the six rods, and could build - its road thereon, but the necessary embankment encroached on the defendants’ lands. In New York, New Haven & Hartford R. R. Co. v. Welsh (52 N. Y. St. Repr. 532; S. C., 69 Hun, 615) the company “was cramped for room and wanted additional entrance into the yard and a place to unload passengers off of the main tracks; ” it had to unload passengers on the main line and delays occurred, and room for additional tracks was needed. In New York, New Haven & Hartford R. R. Co. v. Franz (30 N. Y. St. Repr. 367) the land was required for a side track for receiving freight. In Matter of N. Y. C. & H. R. R. R. Co. (28 N. Y. St. Repr. 64) the lands were required for a train house and a passenger station at a terminus. In Matter of N. Y., L. & West. R. R. Co. (33 Hun, 148) the line of the proposed railroad crossed a ship canal, and, a swing bridge being necessary, the land was required for that purpose. In all of these cases the object sought was necessary for the operation of the road, but in none of them was the proposed work analogous to that now under consideration, which is not to afford relief by adjuncts to the road operated upon the located route, but by the construction of another route or “ cut-off.”

The learned counsel for the respondent admits that the applicatian of section 13 of the Railroad Law (as amd. by Laws of Í897, chap. 235) is extremely doubtful.” Mr. Buchholz, the chief engineer of the plaintiff, testified: “ The intention of the Erie Railroad Company is to build only two additional tracks upon the changed alignment and to retain on the existing mom tracks the two that awe there. * * * There will exist through the village one maim- road on two (different tines.” This plan, then, is not for the alteration or change of the route, but for construction of an addition to the existing route by means of a cut off. I cannot find any statutory authority for the procedure taken.

Judgment and order reversed, with costs.

All éoncurred.

Judgment and order reversed, with costs.  