(dissenting):
I cannot agree that the determination of the Board of Railroad Commissioners in granting the certificate that public convenience and necessity require the construction of the railroad in question as proposed in its articles of association should be reversed because of the provision contained in the certificate that such railroad “ shall be built upon private right of way and not in the highway, except through cities, villages and hamlets on its route.” That I think is a condition to be Commended.
. While it is true that compliance with the provision will not result in building a road upon the exact route proposed in the articles of association, yet it will be upon substantially the same route. ' The line as proposed passes through certain hamlets, villages and cities, and it is required to be constructed- on the route stated in the articles of association. . It is only with respect to the country highways connecting the several villages and hamlets where any change *131in the route of the road is required. Notwithstanding such change the road must proceed from place to place in the exact order named in the articles of association and pass through the respective places upon the route there indicated.
Under section 13 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1897, chap. 235), after the certificate of public necessity has been granted, the company may change its route within the county named in its certificate of incorporation for the purpose of improving the line, and this may be done without the consent of the Board of Railroad Commissioners. With that power existing in the law the change from the route proposed .in the articles of association in the present case is unsubstantial and could be effected by the respondent without application to the Board of Railroad Commissioners if that board had issued the certificate applied for without the provision of condition which it contained.
The relator had a right to insist that no certificate should issue for the proposed road, but I do not think it is aggrieved because of the slight change in the route between the villages and hamlets, required by the condition upon which the certificate was issued.
I think the determination should be confirmed.
Houghton, J., concurred.
Determination annulled, with fifty dollars costs and disbursements against the respondent Rochester, Syracuse and Eastern Railroad Company.