#### The Long Island Railroad Company, Plaintiff, *v.*James K. O. Sherwood and Others, Defendants.

(Supreme Court, Queens Special Term,

November, 1910.)

Railroads and railroad companies — Location of road, termini and stations— Change of location by company — Conditions precedent — Compliance with section 24 of Railroad Law.

A railroad corporation has the right to determine for itself the betterments and improvements necessary and convenient for its railroad service and the court has no supervisory control over the *384lawful exercise of its discretion in adopting plans for the consummation of that purpose.

The corporation may determine the location upon its own land of its depot buildings, of its tracks and its track lay-out generally, and it may make its owa selection of such land as it may deem necessary for its corporate purposes, the extent and location thereof, but the acquisition of such land under the delegated power of the right of eminent domain is dependent upon strict compliance with all statutory prerequisites.

Where the petitioner in a condemnation proceeding to acquire certain lands for railroad purposes has three westerly termini all converging a short distance easterly of a certain avenue, the tracks of all three crossing said avenue at grade and said avenue being a much traveled public thoroughfare and one that for many years has been in public use, and the petitioner contemplates, as shown by a plan adopted by a vote of its directors, not the mere shifting of tracks, or the putting in of a switch connecting the three routes, but the adoption and location of a new right of way over land of abutting owners on the westerly side of said avenue and bounded on all sides by petitioner’s property, thus effecting a change of route of all three divisions, and it appears that the requirements of section 13 (new number 24) of the Railroad Law as to the change of route have not been complied with, the abutting owners are entitled to judgment.

Condemnation proceeding. The opinion states the facts.

L. J. Carruthers, for petitioner.

A. Van Wyck, for answering defendants.

Maddox, J.

Proceeding to acquire lands for condemnation for railroad purposes.

Primarily, that the record may he complete and that defendants may have exceptions to adverse rulings, the same as if taken at the hearing, the objections to the petition herein on the ground of insufficiency are overruled. The motions to strike out the testimony of the witness -Haff as to the resolution, the lease marked exhibit 10, and the statutes following, viz.: chapter 166, Laws of 1847, chapter 146, Laws of 1853, chapter 152, Laws of 1857, and chapter 252, Laws of 1861, are denied, with an exception to defendants to each of such rulings.

*385As said by Judge Willard Bartlett in Bell Telephone Co. v. Parker, 187 N. Y. 299, 303, “ 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 ” and, hence, here if any statutory prerequisite is found wanting, the application must be denied and defendants have judgment.

Petitioner has full corporate capacity as a railroad corporation; has constructed and is maintaining its road; has been for many years and is now operating its several lines, routes and branches, and has, by section 24, chapter 178, Laws of 1834, express authority, in a proper case of course, to acquire necessary lands perforce of the delegated power to exercise the right of eminent domain.

Authority to exercise that right has been and is more specifically provided for and granted in the Railroad Law, sections 3 (Laws of 1892, chap. 676) and 7 (Laws of 1905, chap. 727) of the former law, which were operative when this proceeding was instituted. Petitioner had and has the right to avail itself of such provisions in aid of this application ; they were binding upon petitioner for all purposes, and such sections are now numbered 8 and 17 respectively in the new Railroad Law, re-enacted this year.

Petitioner has three westerly termini, one in Brooklyn, one in what was formerly Long Island City and one in Manhattan, with a separate and distinct route from Jamaica to each, the three being known respectively as the Atlantic division (that to Brooklyn), and the Mont auk division and the main line, running to Long Island City, all three converging a short distance easterly of Van Wyck avenue, and the tracks of all three crossing that avenue, a much traveled public thoroughfare and one that has been in public use for many years, at grade.

It must be remembered that there are two separate and distinct railroad crossings there, that of the main line being the most northerly and that of the Montauk and of the Atlantic divisions being to the south, the distance between the two crossings being approximately the width, on Van ■Wyck avenue, of defendants’ lands here sought to be ac*386quired, and that in all ten tracks cross the avenue at grade.

Petitioner has introduced electric operation of its trains over several of its branches and routes, including its Atlantic division and its main line route west of Jamaica, and operates an express, as well as a local, train service on the two last named, that on the main line also extending to Manhattan.

The lands and property here sought to be acquired are on the westerly side of Van Wyck avenue, and include defendants’ right, title and interest in the lands in said avenue extending from petitioner’s said main line route south to its Montauk division route-, a course along said avenue of ninety feet, nine and one-half inches, and said lands are bounded on all sides by petitioner’s property.

The evidence establishes that the physical conditions at the Jamaica depot and thereabouts are very much congested; that there is not adequate available land space in that imme-diate vicinity for the changes, betterments and general improvements contemplated and embraced in the plan adopted and submitted by the petitioner for the better and more convenient operation of its trains at that place and westerly thereof; for the comfort and safety of its passenger service; for the better transaction of its business as a common carrier and for the elimination of grade crossings; that the platform facilities at the present depot are insufficient, resulting in the crowding of those waiting to take trains going in either direction and also of passengers in changing from one train to another in continuing their journey; that' the trackage space is insufficient, hence causing delay in train service.

Petitioner’s plan provides for a radical change of its track lay-out and facilities, extending from the present Jamaica depot to a point westerly of Van Wyck avenue, which is about 4,000 feet from said depot; the removal of that depot and office building to a point about 2,000 feet west of its present location; the elimination of all grade crossings over Van Wyck avenue, by means of an overhead steel bridge, with solid floor and with two levels, thus mak*387ing it possible for trains to cross either over or under the tracks and course of another train while both are crossing said bridge in the same or in opposite directions, in manner as shown on plans marked exhibits *é*and 6. That the overhead crossing may be carried out, said plan contemplates the convergence of the tracks of the three routes and lines west of Van Wyclc avenue. Such overhead crossing will necessitate the elevation of said tracks to the level of such crossing, and the convergence of said tracks to meet the lines of the bridge proposed will involve the use of the lands which are the subject of this proceeding. It will eliminate the two grade crossings now in use, but only by changing the alignment of the tracks of the three branches from some distance westerly of said avenue, so as to bring them closer together and within the lines of said overhead bridge. An embankment is contemplated for the purpose of reaching the several levels of said bridge, which will require abutments on each .side of Van Wyclc avenue, with long wing or retaining walls on either end, and, consequently, the use of defendants’ lands for such purposes.

One of petitioner’s purposes is practically to dispense with steam operation of its trains over its main line and Atlantic division, substituting therefor, as they have at this time to a very great degree, electric operation, and thus make the Jamaica depot yard its westerly terminal for steam operation, excepting that over the Montauk division. This will necessitate passengers, coming from and going to the east of Jamaica on trains under steam operation, to change to or from those electrically operated, except on the trains of the Montauk division.

The elimination, as soon as the same can be reasonably brought about, of grade crossings where trains of cars are run at a high rate of speed, is now the settled policy of the State and of all its municipalities; and that purpose can be brought about only by depressing or elevating such railroad tracks at highway intersections; if overhead then the necessitv for an embankment must be recognized.

A change of grade is contemplated by the petitioner. This is shown by the plan exhibit 2, adopted *“*by a vote *388of" its directors ” as evidenced by tbe resolution marked exhibit 1. Section 13 (now number 24) of the Railroad Law does not require more than a majority vote of the directors; and no other action is called for, as a condition precedent or otherwise, save in the city of Buffalo, the consideration of which is quite unnecessary here.

But, if the vote and action of petitioner’s directors in that regard is wanting or insufficient, which I do not assent to, compliance with such requirement of section 13 is not a prerequisite to the institution and maintaining of this proceeding; and the necessary directors’ action may be had subsequently to the acquisition of the land sought.

A railroad corporation has the right to determine for itself the betterments and improvements necessary and convenient for its railroad service, and the court has no supervisory control over the lawful exercise of its discretion in adopting plans for the consummation of that purpose. The corporation may determine the location upon its own land of its depot buildings, of its tracks and its track lay-out generally, and it may make its own selection of land it may deem necessary for its corporate purposes, the extent and the location thereof. The acquisition of such land under its delegated power of the right of eminent domain is dependent only upon strict compliance with all statutory prerequisites, the establishment of the reasonable necessity therefor for its corporate purposes (Matter of N. Y. C. & H. R. R. R. Co. v. Kip, 46 N. Y. 553; Matter of Boston & Albany R. R. Co., 53 id. 576; Harlem River & P. R. Co. v. Arnow, 21 App. Div. 636), and in the absence of special legislative authority (People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570) that such land has not previously been acquired for some public use. But-it is likewise true that its right to so acquire land may be made subject to equities existing between the landowner and the corporation, if an unworthy or malicious motive against said owner is shown (Matter of N. Y. C. & H. R. R. R. Co. v. Kip, *supra;*Harlem River & P. R. Co. v. Arnow, supra).

It may use its right of way for any purpose incident'to its business and which may contribute to the safe and .convenient maintenance and operation of its road.

*389Ro change of terminus is involved in the plan here presented; the Long Island City terminal is to continue, since the trains on the Montauk division, operated by steam motive power, are to continue to arrive at and leave from that terminal depot. The discontinuance of steam passenger operation westerly of the Jamaica depot and the substitution therefor of electric motive power on the other branches do not work a change of termini, so long as their rise for railroad purposes generally is continued; and no question is raised here as to the right of the petitioner to operate its trains electrically or by steam motive power, or by both, over any -of its lines or branches, or any part thereof.

The northerly and southerly boundaries of the land in question here are petitioner’s right of way, which are the established routes of its said branches, respectively, each clearly defined and laid out, and presumably originally adopted, located and surveyed as and for the route of each of such lines and the tracks of each division thereupon accordingly laid thereon. The right of way of the Atlantic division is immediately to the south of and runs, for some distance, along that of the Montauk division.

The convergence of the tracks upon each of such three lines and divisions westerly of Yan Wyck avenue, instead of to the east thereof, as at present, would result- for that distance in the establishment of a new route; and it will also be noticed that a change in the location of the crossing over that avenue is involved. It is not the mere shifting of tracks, or the putting in of a switch connecting the three routes; but is the adoption and location of a new right of way over defendants’ land and thus a change of route. It is of no consequence that the tracks of either division will be shifted but a short distance to- conform with the lines of the overhead crossing, or that it will involve only a re-aligmnent of the tracks to meet that situation; the fact is that there will be a new location of the tracks of all three divisions from- the points of their contemplated divergence from the present rights of way, respectively, to the new point or points of convergence and thence oastwardly to the point or points where they now converge, and a subsequent *390abandonment of the present grade crossings, which are about ninety feet apart.

A railroad route presupposes the prior legal establishment and adoption of a right of way; and, while a railroad corporation may for some purposes have a right of way free from tracks and operation of trains, there can be no lawful railroad route without such right of way. That route between stations on a railroad is the line or course surveyed and laid out on such right of way and adopted for use for railroad purposes by the corporation. Hence, any divergence of said line beyond the bounds of such right of way, except upon the lands of the corporation, involves, as against abutting owners, a change of route. Of course this would not be so where additional trackage along an established route was necessary for the purpose of the corporation and the line of the route remained unchanged.

Thus I find that there will be a change of route on each of said divisions; and the requirements of section 13 (new number 24) of the Railroad Law as to the change of route have not been complied with, nor have those of section 11 (new number 21) as to the contemplated change in the location of the street crossing.

It makes no difference that the proposed crossing is to be by means of an overhead bridge and not at grade. It will be a new crossing over Van Wyclc avenue, and section 11 expressly provides that no railroad corporation shall construct “ its road * * * across any street of any city without the assent of the corporation of such city, -x- -x- -x-p> assent has not been shown, but this last provision is not an essential prerequisite to this proceeding. Matter of N. Y. C. & H. R. R. R. Co., 77 N. Y. 248. It may be obtained subsequently to the final order here, but must be had before the corporation can in fact adopt and locate a new crossing over that avenue. People ex rel. Bacon v. Northern C. R. R. Co., 164 N. Y. 289.

The other questions presented do not call for discussion; the importance of those considered have been recognized and have been discussed at some length.

A rather full and complete statement of facts has been *391prepared to tlie end that, if the holdings'here should- on review be found incorrect, the appellate tribunal may direct such judgment and order as such facts call for.

Judgment for defendants.