Opinion
July 24, 1906.
Bernard M.L. Ernst [ Oscar Lowenstein and Melville H. Cane with him on the brief], for the appellants.
George C. Andrews [ Albert H. Harris with him on the brief], for the respondent.
The defendants appeal from an order denying their motion to dismiss a petition in condemnation proceedings on the ground of a failure to comply with the provisions of section 6 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676), requiring the filing of a "map and profile of the route adopted," and the service of written notice thereof upon the occupants of land proposed to be taken fifteen days before the institution of proceedings. The petition contains the requisites prescribed by section 3360 of the Code of Civil Procedure, and is sufficient unless the filing of the map and profile and the giving of notice thereof were necessary. The land is sought for the purpose of providing additional terminal facilities required for the electrical operation of a portion of the respondent's road, and it is undisputed that the taking of additional land for said purpose is authorized by section 7 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1905, chap. 727), and the sole question presented here is whether the requirements of said section 6 apply to the taking of additional land authorized by said section 7, or whether said requirements are limited to the original laying out of the road and establishing of the route. The respondent does not seek to change its present route or lay out a new one; it simply seeks additional accommodations for its present line. The purpose of requiring the filing of a map and profile of the proposed route and notice thereof is made reasonably clear by the further provision of said section 6 for a proceeding to be instituted by the landowners to effect an alteration of the proposed route. Such reason cannot apply to the taking of additional land required by an existing road, unless at least such additional taking contemplates a change or extension of an existing route, and it has been decided that a taking for said latter purpose is not authorized by said section 7. (See Matter of Greenwich Johnsonville R. Co. v. G. S. El.R.R., 172 N.Y. 462.) So far as the question now presented is concerned, said section 6 is a virtual re-enactment of section 22 of chapter 140 of the Laws of 1850. Said act contained no provision for the acquisition of additional land rendered necessary by increased demands after the original laying out of the route, and manifestly the provision respecting plan and profile of the route could only have referred to the original laying out. The taking of additional land was first authorized by the amendment of section 21 of said act made by chapter 237 of the Laws of 1869, and so far as pertinent here, said section 7 of the present law is a virtual re-enactment of said chapter 237 of the Laws of 1869. It was squarely held in two cases that the provision of said section 22 of chapter 140 of the Laws of 1850, respecting map and profile did not apply to the taking of additional land authorized by said chapter 237 of the Laws of 1869 ( Matter of N.Y.C. H.R.R.R. Co., 4 Hun, 381; Matter of South Brooklyn R.R. T. Co., 50 id. 405.) The appellants cite Matter of Rochester Electric R. Co. ( 123 N.Y. 351) and Matter of Greenwich Johnsonville R. Co. v. G. S.El.R.R. ( 75 App. Div. 220; affd., 172 N.Y. 462); but in the first case the petition made no mention of the road previously built, and did not seek in any way to connect the proceeding with the original enterprise; it was, therefore, treated as an original laying out of a route. In the second case lands were sought for a proposed extension which the court held was not authorized by said section 7 (as amd. by Laws of 1892, chap. 676).
Our conclusion is that the motion was properly denied and the order should be affirmed, with ten dollars costs and disbursements.
HIRSCHBERG, P.J., HOOKER, GAYNOR and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.