By subdivision 4 of section 28 of chapter 140 of the Laws of 1850, it is provided that railroads, after incorporation, may lay out a road “ not exceeding six rods in width, and to construct the same ; and, for the purposes of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road, and to cut down any standing trees that may be in danger of falling on the road, making compensation therefor as provided in this act for lands taken for the use of the company.”
Every railroad corporation, before constructing any part of its road, is required to make a map and profile of the route intended to be adopted in every county through which the proposed route is located. (Sec. 22.) Notice must then be given to all actual )ccupants of the land proposed to be taken. Fifteen days’ time is given to the owner to apply for a change of route. The defendant made a map and profile of its route, and this map included the entire statute width, ninety-nine feet, and no more. In constructing the road it is necessary to make a cut of seventy feet at one part of the route. In making this cut it is necessary to take the land adjacent and outside of the ninety-nine feet. No change of route was proposed by the landowner. The question presented is whether the company can take this additional land without a new map and profile. I think it can. The statute absolutely limits the width of the road, *407and this strip is taken. It is not reasonable to suppose that the legislature intended that the additional lands, which became necessary for the security of the road for slopes for cuttings and embankments, were, at all hazzards, to be anticipated by the company. So much depends upon the material included in this cut or embankment that nothing but actual experience can give evidence of this need of the additional land required for their safe construction. If the cut develops quicksand, or if the rock is shelly, a need is at once presented for more land, and not certainly until then. It is a more reasonable construction of the .railroad act that this additional land was to be taken as its need was developed after the construction was commenced.
The order should, therefore, be reversed, with costs and disbursements, and a commission appointed to appraise the land in question, unless an issue is made on the facts of the petition; leave to make such issue is hereby granted.
Pratt, J., concurred.Order reversed, with leave to owner to make an issue as to the necessity for the land by petitioner