70 N.Y.S. 698 | N.Y. App. Div. | 1901
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^
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
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 con
The learned counsel for the respondent admits that the applica
Judgment and order reversed, with costs.
All éoncurred.
Judgment and order reversed, with costs.