In order to carry out an extensive plan to improve its railroad system at Jamaica the plaintiff sought by this proceeding to acquire certain lands of the defendants by condemnation. The three lines operated by the plaintiff, one owned and the others leased, converge but do not meet or coincide at Jamaica, which *Page 12 is within the city of New York, each being constructed upon its own right of way extending continuously from its own separate and independent terminus at one end of its line to its own separate and independent terminus at the other. The lines extend east and west the entire length of Long Island with many branches. The land in question is bounded on the north by the main line of the plaintiff, on the east by Van Wyck avenue, on the south by the Montauk line of the plaintiff and on the west by other lands. The Atlantic division line adjoins the Montauk line on the south and each of the three lines has several tracks on its own right of way. The proposed plan involves the removal of all the tracks of the Montauk line and of the Atlantic division line bodily from their present rights of way and the location thereof on new rights of way over the lands of the defendants sought to be condemned for that purpose. It also involves the removal of part of the tracks of the main line from its present right of way and the location thereof on said land. Notwithstanding such removal of the tracks the lands of the three lines constituting their present rights of way will not be abandoned, but will continue to be used for railroad purposes such as the slope of a huge embankment required by the proposed plan and in other ways. They will not, however, be occupied by tracks and trains of cars will not be run over them in the operation of the respective roads. The change in the location of the tracks from the present right of way to the proposed right of way extends for several thousand feet both east and west of the land in question and creates a new line of travel for over a mile.
The plan also involves the construction of additional main tracks, but they are not to rest on the surface of the ground. They will be raised in the air over the present main tracks when moved on to the land in question and will constitute an elevated railroad, supported by columns. The new tracks will not be elevated over the *Page 13 old while in their present position, and not until after they have been removed respectively to the north and south and placed on the land now belonging to the defendants. The old tracks will not cross Van Wyck avenue where they now cross, but at an entirely different point and under very different circumstances, while the new tracks will be in the air over them like a second story resting on posts. No track, new or old, will rest on or be raised over the land where the main tracks now rest, nor within the lines of the present right of way as adopted many years ago and used for time out of mind.
If this change involves a change of route the plaintiff concedes that the proceeding was properly dismissed, because the preliminary steps required by statute in order to change a route had not been taken. It claims, however, that the proposed change is not a change of route but a re-arrangement of tracks, and that it has power to make the same without complying with those provisions of the statute relied on by the defendants. The primary question involved is, what does the statute mean by a change of route? This involves the question, what is the route of a railroad according to the Railroad Law as it stood when this proceeding was begun?
Section 4 of that act confers power on the corporation "to cause the necessary examination and survey for its proposed railroad to be made for the selection of the most advantageous route;" to acquire by grant or condemnation the real estate necessary to construct and maintain its road; "to lay out its road not exceeding six rods in width, and to construct the same; and, for the purpose of cuttings and embankments, to take such additional lands as may be necessary for the proper construction and security of the road."
Section 6, entitled "Location of route," requires the corporation "before constructing any part of its road in any county named in its certificate of incorporation, or instituting any proceedings for the condemnation of real *Page 14 property therein," to "make a map and profile of the route adopted by it in such county," and "file it in the office of the clerk of the county in which the road is to be made * * *;" to "give written notice to all actual occupants of the lands over which the route of the road is so designated, which has not been purchased by or given to it. * * * Any such occupant or the owner * * * may, within fifteen days after receiving such notice, give ten days' written notice to such corporation and to the owners or occupants of lands to be affected by any proposed alteration, of the time and place of an application to a justice of the Supreme Court * * * for the appointment of commissioners to examine the route," stating in the petition the objection to the route designated and designating "the route to which it is proposed to alter the same," and furnishing a survey, map and profile thereof. Upon the hearing commissioners may be appointed to examine the two routes and they may adopt either, "as may be consistent with the just rights of all parties and the public, including the owners or occupants of lands upon the proposed alteration." Provision is made for an appeal, and, on the hearing thereof, "the court may affirm the route proposed by the corporation or may adopt that proposed by the petitioner."
Section 7, as recently amended, provides, among other things, that "every railroad corporation shall have the power from time to time to make and use upon or in connection with any railroad either owned or operated by it, such additions, betterments and facilities as may be necessary or convenient for the better management, maintenance or operation of any such railroad, and shall have the right by purchase or by condemnation, to acquire any real property required therefor," or "for additional main tracks or for branches, sidings, switches, or turnouts or for connections or for cutoffs or for shortening or straightening or improving the line or grade of its road or any part thereof. Also where it shall require any *Page 15 further rights to lands or the use of lands 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."
Section 13, entitled "change of route, grade or terminus," provides that "Every railroad corporation, except elevated railway corporations, may, by a vote of two-thirds of all its directors, alter or change the route or any part of the route of its road or its termini, or locate such route, or any part thereof, or its termini, in a county adjoining any county named in its certificate of incorporation, if it shall appear to them that the line can be improved thereby, upon making and filing in the clerk's office of the proper county a survey, map and certificate of such alteration or change. * * * No alteration of the route of any railroad after its construction shall be made, or new line or route of road laid out or established, as provided in this section, in any city or village, unless approved by a vote of two-thirds of the common council of the city or trustees of the village. * * *" Provision is also made for a change of the grade of any part of its road by a vote of the directors. Neither this section nor section 6 was changed when section 7 was so amended as to provide for additional main tracks.
According to section 4 the corporation may select the route which it deems "the most advantageous," lay out its road not exceeding six rods in width thereon, construct the same asthus laid out, acquire the real estate needed for thatpurpose, and if "additional lands" are necessary for "proper construction and security," to acquire these also. This seems to confine the route to the strip of land on which the road is laid out and built.
Section 6 definitely locates the route by the map thereof as filed and confines it to said strip by the requirement of notice to the "occupants of the land over which the *Page 16 route of the road is" designated on the map. This is confirmed by the procedure required in order to change the route, for notice must be given not only to the corporation but also "to the owners or occupants of land to be affected by any proposed alteration." A primary object is the protection of the landowner, whether he owns lands on the route selected or on the route proposed. While the owner of abutting land, no part of whose property is covered by the route, is not entitled to notice, written notice must be given to all "occupants of the lands over which the route" is designated on the map in the one case, and "to the owners or occupants of lands to be affected by any proposed alteration" in the other. The action of the commissioners must be consistent with the rights of all parties, including by express mention the owners of lands on "the proposed alteration." As the defendants could not object when the route was first laid out because no part of their land was taken, unless they can be heard now they never can be heard at all upon the subject. Unless the route is substantially coterminous with the strip selected, where is the service of notice to end and why should not abutting owners be notified? If the route is wider than the strip, notice must be served on all the occupants of lands over which the route passes, yet the settled practice of over half a century has never required notice to any landowner outside of the strip. No owner of land without the strip can secure a change of route, for the right to apply therefor is given only "to such occupant or owner," that is, to the occupant or owner "of the land over which the route of the road is so designated." According to the statute as thus practically construed the route is limited to the strip and by the strip, and no change of route "or any part thereof" can be effected indirectly, or except as provided by section 13. Hence the route is the right of way as originally acquired for the construction of the road and upon which the road was built. It is the land to which the easement of railroad *Page 17 operation attached upon the completion of the railway. Within that strip of land tracks may be laid and changed at will, but while there may be floating tracks there can be no floating route.
In a case which received careful consideration (Erie RailroadCo. v. Steward, 170 N.Y. 172) the facts were that the Erie Railroad Company entered and left the village of Goshen upon a long and irregular curve of somewhat more than three miles in length. The grade was undulating and auxiliary engines had to be used to haul trains over the distance at great expense to the company. In order to obviate this and to have two additional tracks as a part of the main line upon which freight trains could be moved with greater facility the company filed a map and laid out a new line of something less than three miles in length over the lands of the defendants and others, which began at a point on the main line west of the village of Goshen and proceeded in very nearly a straight line to a point upon the main line east of the village. The plan proposed was to retain the main line and construct a new line through the village. One of the questions was whether this involved a change of route and in deciding it Judge GRAY said: "When the company had located its line of road between its terminal points, pursuant to the requirement of its charter, it was concluded by that location and no change of its route could thereafter be made, in the absence of legislative authority. The effect of the designation by the directors of the line of the road was the same as if the line had been described in the charter and the operation by the corporation of a railway limited thereto. (Hudson Delaware Canal Co. v. N.Y. ErieR.R. Co., 9 Paige, 323, 328; Mason v. Brooklyn City N.R R.Co., 35 Barb. 373, 381; Matter of Poughkeepsie Bridge Co.,108 N.Y. 483; Wood on Railroads, § 271.) It was with reference to the construction of the line, or way, as, and when, designated by the directors, that the power of *Page 18 eminent domain was delegated to the corporation, to be exercised in the acquisition of private lands and that power, once exercised was, necessarily, exhausted." (p. 179.) After reciting the provisions of the Railroad Law, relied upon in that case as well as in this, the judge continued: "That a change of a part of the route, by a diversion of the tracks of a main line over a `short cut' across another part of the village, is within the general powers conferred upon the corporation, I do not believe. The statutory power of eminent domain is not to be extended by inference, or implication. (Rensselaer Saratoga R.R. Co. v.Davis, 43 N.Y. 137.)" After holding that the land was not needed for switches, turnouts, filling structures, constructing, widening or completing any of its embankments or roadbed or the like, but "for the projection of its main line over a new and straighter way," we further said: "While insisting that an alteration, or change of route, is not necessarily involved, the plaintiff says that the statutory provision is applicable and that it may proceed without being obliged to first secure the approval of the village trustees. In this construction I am unable to agree. The language of the statute is mandatory that `no alteration of the route * * * shall be made * * * unless approved,' etc. That is very different from the case cited, ofMatter of N.Y.C. H.R.R.R. Co. (77 N.Y. 248) * * * It would be unjust to the landowner to hold that the corporation could proceed * * * and burden his title with a proceeding to take his land for a new line, or route, through the village, without showing compliance with the condition, without which the plan would be abortive. (Matter of Rochester Electric Ry. Co.,123 N.Y. 351, 360.)"
While in that case the line was to be split in two and for nearly three miles one of the tracks was to be built on new land, in this case the lines of two railroads are to be moved bodily and a third line partially from their present and original rights of way for a distance of more *Page 19 than a mile on to new land which never formed part of those rights of way.
It is true, as stated in the prevailing opinion, that the statute now permits land to be taken for additional main tracks, but according to the plan proposed the additional main tracks are not to rest on the surface of the ground. No new land is needed for tracks, as substantially no additional space laterally will be used and the trial court found and had a right to find that the land in question was not needed for additional main tracks. Why is more land needed for additional tracks, when such tracks will not be laid on the land? Whether the change of route is the main purpose of the plan, or merely incidental thereto, as an actual change of route is necessarily involved, it cannot be lawfully made without complying with the statute.
The case of People ex rel. Bacon v. Northern Central Ry.Co. (164 N.Y. 289) arose under section 11 of the Railroad Law relating to the crossing of highways by railroads. It is somewhat analogous because the question was whether the removal of the railroad track thirty-five feet to the westward and the crossing of the highway at another point and by a different method of constructing a bridge and its abutments, could be made without application to the court under that section. In deciding the case we said: "If the defendant could make the change, to which reference has been made, without the order of the court, it might have just as well removed its route and crossing thirty-five hundred feet to the west ward instead of thirty-five feet, if it had served its purpose so to do." (p. 301.) This indicates that a change of route cannot be made without complying with the statute because the change is but slight. The change proposed in the case now before us is for a greater distance laterally and much greater lengthwise than in the case cited. (See, also, Matter ofPoughkeepsie Bridge Co., 108 N.Y. 483; Matter of Greenwich Johnsonville Ry. Co. v. Greenwich Schuylerville El.Railroad, 172 N.Y. 462.) *Page 20
The elementary works lay down the same rule, but not with absolute uniformity, owing to a difference in the statutes of the various states. Governor Baldwin, in his valuable work on American Railroad Law, says: "The power to make a location is governed by the rule that a power of location once exercised is exhausted. Unless, therefore, there is some legal provision to the contrary, after the directors have made and published a location, they cannot alter it by substituting another. * * * Courts cannot alter a railroad location in any collateral proceedings." (p. 64, citing authorities.)
"Once located, a railroad is permanently located for the whole term of its existence, subject only to the exceptions of a specially granted express legislative enactment, authorizing a change or relocation." (2 Elliott on Railroads, § 930.)
"In some of the states it is held that before its road is constructed (the railroad) may, where the statute warrants it, change its location at discretion even after it has been fixed by it, but in no case, after the road is constructed, where such change involves the exercise of the right of eminent domain, and as a rule, after location is filed as required by law." (2 Wood on Railroads, § 271.)
In the Untermyer case, in which we wrote no opinion, there was special power conferred by the act consolidating the New York Central Railroad Company and the Hudson River Railroad Company into a single corporation. I do not regard that case as analogous. (N.Y.C. H.R.R.R. Co. v. Untermyer, 133 App. Div. 146;196 N.Y. 531.)
The learned counsel for the appellant contends that there is no change of route so long as the road traverses the same section, serves the same locality and there is no decided deviation from the constructed line of the road. If this is true what becomes of the protection so carefully provided for the landowner? What becomes of those provisions which we have quoted from the Railroad Law requiring notice to be given to him upon the original *Page 21 location of the route and notice to be given by him when any change of route is proposed? Upon whom are notices to be served unless the map and right of way define the route? The whole subject would be in the air and so unsettled as to leave nearly everything to the discretion of the railroad corporation, with nothing to protect the landowner. Private land could be invaded at will and the route would be substantially where the company at any time wished to place it. I do not so read the statute. When such care is taken to prescribe in great detail the method of changing a route, "or any part thereof," and provision is made that the decision of the question shall be consistent with the rights of the public, the owners of the land over which the old route passes and the owners of the land over which the new route may pass, I do not think the route can be changed by indirection through resort to provisions of the statute which have no relation to the subject of route or a change thereof but apply solely to additional main tracks, embankments, betterments and the like. Indeed, the petition of the plaintiff and the facts found exclude those provisions as not within the intention of the plaintiff in proposing its plan. The trial court found not only that the plaintiff has enough land already upon which to construct an adequate station at Jamaica, but also enough to construct two additional tracks for the purpose of increasing and bettering its express service and facilities; that the lands in question "are not actually necessary for the purpose of eliminating the grade crossing at Van Wyck avenue of plaintiff's" three lines, "as the same are now constructed." It expressly found that the land in question is not needed "for additional main tracks or for branches, sidings, switches or turnouts, or connections, or for shortening or straightening, or improving the line or grade of plaintiff's road or roads, or any part thereof;" nor "for filling any structures of plaintiff's roads, or for constructing, widening or completing any *Page 22 of its embankments or roadbeds as the same are now constructed, by means of which greater safety or permanency may be secured." It did not find as a conclusion of law that the plan operates as a change of route, but found as a fact "that plaintiff's plans provide for, and plaintiff thereby intends to change or alter its line or route" upon the land in question, and that this is its sole purpose. The conclusions of law are silent upon the subject of change of route. Any one who carefully reads the record and examines the numerous maps, will find that the findings above alluded to are amply supported by evidence. The rule in cases of condemnation requires not a liberal but a strict construction of the statute. As was said by Judge WILLARD BARTLETT in a late case: "The stringent character of the power of eminent domain demands that the methods of procedure prescribed for its exercise shall be strictly if not inflexibly followed." (Bell TelephoneCo. v. Parker, 187 N.Y. 299, 303.)
The plans, which form part of the record, show that the plaintiff intends to erect a solid embankment nearly three miles long through the city of New York at the locality in question; to cross Van Wyck avenue at new points, not only changing the grade of the avenue but obstructing it to a serious extent, and, aside from the change of route, to make other changes of a radical character in which the municipality and its citizens have a deep interest. Even if the plaintiff had the statutory power to practically change its route by constructing additional main tracks, at the least, it was within the sound discretion of the courts below to require it to obtain the consent of the proper municipal authorities to the proposed plan before allowing the lands of the defendants to be condemned. While it has been held that where different steps must be taken to effect an ultimate purpose and there is no rule of law providing which step shall be taken first, the courts may allow them to be taken in any order that the actor sees fit, still it is within the discretion of *Page 23 the court to require a particular order to be observed in order to prevent annoyance and hardship. In other words, the plaintiff has no right in any event to take this land unless the improvement is made and the improvement cannot be made without municipal consent. That consent may never be granted, and hence the courts may say, as the courts below have said, that the landowners shall not be disturbed until such consent has been obtained. The land may never be needed. In Erie RailroadCompany v. Steward (supra) it was held that the provision of law was mandatory and that the change of route through a village could not be made or a new route laid out and land acquired for the purpose, unless such change was first approved by a two-thirds vote of the trustees. In Matter of Rochester ElectricRailway Company (supra) it was held that the consent of the highway commissioners to the construction of a railroad in a public street was an essential prerequisite to the maintenance of a proceeding to condemn land abutting on the highway. In both of these cases Matter of New York Central Hudson RiverRailroad Company (77 N.Y. 248) was distinguished if not overruled in this respect. (See, also, Matter of Kings Co. Elev.R.R. Co., 105 N.Y. 97.) The same rule applies to a city and with greater force, owing to the magnitude of the interests involved.
I think that the facts found by the trial court have the support of evidence to such an extent as to prevent interference by us after affirmance by the Appellate Division, and that those facts and the law applicable thereto required that the petition of the plaintiff should be dismissed. I, therefore, vote to affirm the order appealed from.
CULLEN, Ch. J., WERNER, CHASE and COLLIN, JJ., concur with HAIGHT, J.; WILLARD BARTLETT, J., concurs with VANN, J.
Judgment reversed, etc. *Page 24