In re People’s Rapid Transit Co. 34 N.Y. St. Rep. 595

Peckham, J.,

There are two grounds for denying this application.

First. It seems to me plain that the act of 1860 (chap. 10) interposes an insurmountable objection to the granting of it. It is stated in behalf of the petitioner that there is no intention of building the road through the length of any street, but only across such streets as it will be necessary to cross in its proposed route through the city, from its northern boundary to the City Hall Park. The act of 1860 prohibits the building of any railroad “ in, upon or along any of the streets or avenues of the city of Hew York.” It is contended that this act, properly construed, only prohibits the building of a railroad through tire length, or a portion of the length of a street, and does not reach the case of a railroad which merely crosses the streets of that city. I cannot agree to any such nan-owing of what seems to me the plain meaning of the language used in the act. If the road was built through the length of a street, its location might be fairly described by the use of either one of the three words contained in the statute, “in, upon or along” such street. But to describe a road which simply crossed a street as being built “ along” such street, would be using language neither appropriate nor exact! To say of such a road that it would be “in,” or “upon” that street at the point where the road crossed it, would be both appropriate and exact. There is a difference in the meaning of these three words as used in the statute and some effect should be given to such difference. If their meaning be construed to simply prohibit a railroad along the length of the street, no effect whatever is given to this difference. The words used are certainly apt to describe a railroad which crosses a street

Such a railroad is plainly, for that distance, both “ in ” and “ upon ” the street which it crosses. H not “in or upon” it at that point, where is it ? Ho description of its whereabouts at that particular point is better than to say it is “ in or upon ” the street which it crosses. It is sufficient and it is true. It is not necessary that the railroad should pass along the surface of the street in order to be in or upon it. Matter of New York District Railway Co, 107 N. Y. 42 ; 11 N. Y. State Rep., 753. Finch, J., in the above case (page 52), in alluding to the injury which street railroads might work to public rights, and to the necessity of guarding and protecting such rights, said: “ But street railways may occupy every street in a city and iron the whole surface, or spin their webs in the air over every avenue, or undermine the entire system of city streets.” The proposed railroad in that case was underground. There is no doubt that a railway under or elevated above the surface of a street is still a street railway in that street, and when the road crosses the street, either under or above *597the surface, it is still “in or upon ” such street at the point of crossing.

The language of the statute seems so plain and extensive as 'to furnish a full and conclusive answer to the application of the petitioner. But the researches of counsel have brought to light what is thought to be a legislative interpretation of the meaning of this language, and it is insisted that whenever the legislature has meant to include the crossing of a street as within its permission or prohibition, it has used such a word as “ across,” “cross,” or “intersect.” A careful examination of these statutes reveals, as it seems to me, the fact that those words were generally used with reference to the distinction which the context made between laying a railroad along a highway or canal, and across it. No one supposes that there is no difference between a permission to build a road along a street, and a permission to cross it But I think that in merely crossing it the railroad at the place of crossing is “ in or upon ” the street which it crosses, just as much as it is in or upon the street along whose length it is laid.

And again, it is well known that sometimes more words are used in a statute than are actually necessary to express the meaning of its framers. The fact that the word “ across ” or “ intersect ” has been frequently used in former statutes where they intended to permit or prohibit the crossing of a street is not of any great importance in the construction of another statute in which such word is absent, provided the language actually used is sufficient and appropriate to express the idea that the crossing is permitted or prohibited. If the language be broad enough, and there be no other ground for narrowing its natural meaning, it should not be narrowed because in some other statutes additional words have been used to express the same idea.

The language of the act of 1860 is as apt and appropriate for the purpose of prohibiting the crossing of a street as it is the travelling through its length, and the abutting owners upon the streets which are crossed would be entitled to receive as much protection by reason of the act as their brethren dwelling in the street along the length of which the track might otherwise run, and certainly they are as much entitled to it Although not so numerous, yet the abutting owners of property on the various streets crossed by a railroad running from Spuyten Duyvil to the city hall in the city of New York would make no contemptible showing in numbers, while the value of the property to be necessarily and immediately affected by the building of the road, it is safe to say, would run up into millions of dollars.

No reason can, it seems to me, be suggested for attempting to narrow by construction and explanation the otherwise plain meaning of this statute.

The railroad contemplated is a vast undertaking. Competent engineers estimate its probable cost, including right of way, from Spuyten Duyvil to the park at the city hall, a distance of about fifteen miles, at $86,000,000. It is to pass through great numbers of solid blocks of dwelling-houses and stores, many of them' in the heart of the city. A general statute under which a cor*598poration could be formed for building this kind of a railroad would seem to be the most efficient way to secure and conserve all rights.

The work of demolition and construction under such peculiar circumstances, and upon so vast and important a scale, should be the subject of great deliberation on the part of the public authorities, so as to furnish the utmost protection and secure the least possible inconvenince to the public and the owners of property adjacent to the contemplated work. The character of such a work, and the manner of its execution should be provided for and particularly described. The responsibility of the company to the city or the state for the violation of any of its duties in the course of the construction of the road should be clearly defined and ample guarantees exacted for the meeting of such responsibilities and for the fulfillment of such duties by the company. It might be that provision should also be made for the payment to the city of a certain proportion of the profits above an amount to be stated. It may be said that the city can provide for all these matters before giving consent to cross the streets. This may be true. Whether such security be sufficient or not is not for this court to say. It is, however, much better that the conditions upon which the work was to proceed should be inserted in a general statute in advance of the organization of a company for the purpose of doing the work as directed by it, rather than that they should be imposed after the company was organized and had done more or less of the work of construction. It would also prevent the use of any influence to make the condition of consent on the part of the city as purely perfunctory as possible. The conditions to be performed by the company in the case of a general statute would be known in advance, and would be unalterable by the city, and all intending investors in the project would have full knowledge of the same in advance of a subscription.

Matters of this nature have been alluded to for the purpose of showing the very great importance of this work, and to give a reason why the meaning of the language of the act should not be unnecessarily narrowed. If the statute of 1860 furnish an answer to this application, the whole subject can be fully and intelligently discussed, and a general act having all proper safeguards may be passed which will entrust any city through which a road of the kind herein contemplated is to run with such powers in the matter as ought to be given to a municipality when an undertaking of this magnitude and importance is to be carried on, and where the citizens thereof would be so vitally interested in the work and in thé manner of its execution.

The amendments to § 28 of the general railroad act of 1850, as contained in chap. 133 of the Laws of 1880, and chap. 724 of the Laws of 1887, do not grant the authority made requisite by the act of 1860, and were never intended for any such purpose.

I think the order should be affirmed because the act of 1860 prohibits the building of such a road.

Second. I think there is also another equally fatal objection to this application.

*599It is my belief that the general railroad act of 1850 confers no right upon a company incorporated under it to build any such structure as the petitioners have here in mind.

We have lately held that the act permits the organization of horse railroad companies under its provisions. Matter of the Application of Washington St., etc., R. R. Co., 115 N. Y., 442 ; 26 N. Y. State Rep., 504.

Permission to build and operate railroads, to transport property and persons upon the same By animal power as well as by steam or by a combination thereof, had been granted by the legislature many years prior to the passage of the act of 1850, and when such last named act was passed the method of propulsion by animal power was familiar to all. The language of the act in subd. 7 of § 28 specially included the right of corporations formed under it to transport persons and property by the power or force of animals as well as steam. Horse railways were organized under the act almost immediately after its passage and continuously without any question of right for many years. The contemporary and practical construction given to the act by incorporators under it, by the public officials and by the public itself, was in favor of its application to horse railroads. This court in the case above cited held under these circumstances that it included corporations of that kind. But there is nothing in that case that determines the question now before us.

The distance is a long one between a decision that horse railroad companies can be legally organized and can operate their road under the act of 1850, and one that should hold it proper to organize under that act and build and operate such a road as these petitioners claim the right to build and operate. They seek to build and operate a road in Hew York city, upon which, as they say, “ express trains of the largest passenger capacity may run at an average speed of fifty miles an hour.” The road, as the petitioners also state, is to cross all the streets within the city at an elevation which will not limit, restrict or in any wise-interfere with their present or prospective public use. This is to be accomplished by elevating the tracks above the ground and passing through the solid blocks of buildings in the city which occupy the proposed site of the road. To do this the property so situated must be taken and the buildings destroyed. As contained in the moving papers, it is said: “ The idea of construction may be described as a two-story viaduct, the first flat having a width of fifty feet, with an elevation of about sixty feet above street level. The second-story, with the same axis or centre line on which it rests, would be twenty-two feet wide on top, seventy-five feet above the street. The lower viaduct will have a track on each side or edge. The upper one, two tracks, side by side. These structures are to be mainly of brick arches, both in longitudinal and cross sections, the lower one being, as it were, complete in itself before the second tier of arches, forming the second-story, is raised upon it. This system applies to all the work through the bloclcs. The streets will be spanned by steel bridges of the most modern and most approved designs. * * * It is contem*600plated to have some thirty-one stations between Spuyten Day vil creelc and the Battery. * * * Passengers to be lifted to and lowered from the stations by elevators, of which there are to be four at each station, two on each side of the crossing street, of capacityto give ample room for all comers and goers.”

It is plain that no such vast viaduct as is above described was ever in the legislative mind when the general railroad act was passed. Nothing of this kind was then known. The idea is comparatively new. The engineer (now deceased), who originated it, or first gave it study and attention enough to come to some practical conclusion regarding such an extraordinary project, felt the necessity on account of its novelty and cost of having other and most prominent as well as competent professional opinion as to its feasibility and capacity to perform the service which would be required from a structure like this prior to placing the plan before the public, or seeking to incorporate a company having for its object the building, equipping and running of such a road, which is plainly beyond and outside the purview of the act. It cannot be denied that the act was passed for the purpose of effecting the incorporation of the ordinary steam surface or horse railway, and that under it large numbers of both kinds of roads have been incorporated, and now remain corporations. It is true that by its terms it was not to be limited to corporations conveying persons and property by steam or animal power. The words “or by any mechanical power ” were added, so that under the act corporations might be formed to use any mechanical power for the purpose of transporting persons or property. Under such a provision it might well be that a company would have the right to organize for the purpose of using as a means of transporting persons and property some mechanical power which was not in use, or which "was even unknown at the time of the passage of the act. The language used therein would seem to provide for just such a contingency, and to include it within the power given to a company organized under it.

Nor would we say that a railroad company to be properly organized under the act must be wholly confined to a surface road, and not at all an elevated or an undei-ground structure. Our judgment goes upon the special facts of this case. Here is a scheme which in its construction and equipment for actual operation differs as wide as the poles from the ideas which were in the minds of the legislators of that day, as we are able to gather what' those ideas were from the language used and from our knowledge of the times in which the act was passed. A great viaduct two stories high, one sixty and the other seventy-five feet above the level of the ground, built on arches and going through miles of solid blocks of building's in a populous city, never, it is safe to say, entered the mind of a single legislator who voted for this act. It was beyond the imagination of any.

In carrying out the object of the company, that is, in operating a railroad in the'city of New York, it is said that it is necessary to do nothing beyond what is plainly authorized by the act. This, however, depends upon the sense in which that language is *601used. The company proposes to issue stock for the purpose of building a steam railroad. It may borrow money to complete and operate it. It may purchase or take lands for its necessary use, and hire labor and purchase materials. All this may be done under the act of 1850, and the object of the company in obtaining and operating a railroad may in that way be attained. This, however, is but a false view of the situation. The question is, whether the method of obtaining the completed thing, and the thing itself when completed, is really within the authority of the act. Is this viaduct, fifteen miles long, a means or method of obtaining the railroad as a completed thing, such as is contemplated or in any fair way authorized by the act ? Or is it a structure clearly beyond the scope and purview of the act, and one which would not have been authorized by it without other provisions relating to the building and operation of a road under such different circumstances from the ordinary surface road.

The object and purpose of the general railroad act were, as it seems to me, to authorize the organization of railroad companies for building, equipping and operating railroads having some kind of resemblance to those structures which had already been built, and where the conditions under which the roads should be thereafter constructed and operated would somewhat resemble those already in operation. I do not think the petitioners come within the most liberal construction to be given this act. Their proposed road is shown to be radically different in construction and in almost every detail from any which has ever been erected in this quarter of the globe or, until comparatively recently, within the world itself. Its sole resemblance to any railroad ever erected is that the cars are to be run on rails and to be propelled by steam.

The manner in which the company proposes to build and operate this road I have already stated. There can be no doubt that it is not only an extraordinary but a novel method of building an entire railroad. A viaduct fifteen miles long through the entire length of a city is not a bridge in any sense of the word. Nothing in the act of 1850 fairly describes or authorizes it. In so stating I do not mean to say that the provisions of a statute can never be construed to include cases or subjects not in existence or known to the framers of the act when it was passed. I am far from holding any such principle. But I think that an act of the legislature passed for a general purpose should not be construed as giving a right to accomplish that purpose by a method or plan which was clearly not within the contemplation of the legislature and which was unknown to it when the act was passed, and when from the nature of the case and the surrounding facts it is apparent that such method or plan if known at that time would not have been permitted without the insertion in the act of other and additional provisions rendered appropriate and necessary in view thereof.

It is impossible to believe that the legislature which passed this act, if it had had in mind the building of such a structure through the streets or blocks of a populous city as a method of construct*602ing a railroad, would have permitted it without placing in the act other and greater safeguards to the public interest and the rights of owners of adjacent property than it now contains.

The proposed structure is at least as great a departure from the kind of railroad contemplated in the act of 1850 as are the elevated roads in Mew York city, and yet if the appellants be right in their contention that their proposed railroad could be built under the authority of the general railroad act, it was wholly unnecessary to have passed the so called rapid transit act under which the elevated railroads in Mew York were organized. The parties had but to organize under the general railroad act and then proceed under its authority to build their roads. I think, however, it was the general belief that the act in question would not cover or apply to the building of what are known as elevated railroads in cities, and that in order to provide for the organization of companies for that purpose a general act was necessary granting power to do such work.

The same views lead to the necessity of an act of the legislature, general in its nature to be sure, but providing therein for some such kind of structure as is herein contemplated.

For these reasons I think the order of the court below refusing the application of the petitioner was correct, and it should be affirmed, with costs. 0

Earl, J.

(dissenting).—This is a proceeding by the People’s Rapid Transit Company, under the general railroad act of 1850, to acquire the land in the city of Mew York, of Bowie Dash, for the purposes of its railroad. The petition of the company contains all the facts and allegations required by the act, and there is no denial of any of them. It shows that the company was organized under the general railroad act to build and operate a road from Tarrvtown, in Westchester county, to and into the city of Mew York, about thirty miles long; that its purpose is to construct and operate “ a railroad of the greatest carrying capacity, to be operated by steam power, upon lands to be purchased or acquired under the provisions of said act of 1850, upon which express trains of the largest passenger capacity may be run at an average speed of fifty miles an hour, which road may be maintained and operated without any injury to any interest of the public or of the city of Mew York, and which will withdraw from the ordinary uses of commerce and business the minimum of space and area on the surface of the ground; that such a railroad requires that the curvature of its lines should in no instance exceed five degrees, and that the grade should not exceed one-half of one per cent; that said railroad will pass above all the streets and highways •within the city at an elevation which will not limit, restrict or in anywise interfere with their present or prospective public use, and as nearly at right angles with such streets as the required curvature of the lines will admit; that in the few instances, all of which are north of One Hundred and Twenty-fifth street, where the contour of the surface will not admit of the passage above the street, the tracks will be laid below the street at such a *603depth as will leave the 'entire space required for sewers, gas mains, conductors and all other present or prospective city public uses wholly undisturbed, and will not in any respect limit, restrict or interfere with such public use; that the line or route so located is not, nor is the railroad or any part of it, within the limits of the city of New York intended to be ‘in, upon or along’ any or either of the streets, avenues or highways of said city, nor is the same or any part of it, in fact or intended to be, either ‘ a street railroad ’ or a railroad or railway ‘ over, upon, under or through ’ any or either of the streets, roads, avenues, parks or public places in said-city.” The affidavits which accompany the petition show that the company proposes to carry its road, except where it is built under ground, upon high brick arches through the city blocks and over the streets upon high steel bridges.

It is entirely clear that the proposed road is not a street railway nor wholly a surface railway. It is in part an elevated railroad, in part an underground railroad, and in part a surface railroad.

It is contended, on behalf of the land-owner, that a company to construct and operate such a road cannot be'organized under the general railroad act. That act was not confined in its operation to any particular kind of road. It is very broad and comprehensive in its provisions. Under it, standing alone, any kind of road, surface, elevated, underground or street, for the conveyance of passengers and property, can be constructed, and the act contains no limitation as to the motive power to be used. Matter of the W. S. A. & P. R. R. Co., 115 N. Y., 442 ; 26 N. Y. State Rep., 504. It is not only broad and comprehensive, but also exceedingly liberal. Any number of persons, not less than twenty-five, without any further sanction or authority than that found in the act, can form a corporation to build a railroad anywhere in the state, to be operated in a city or in the country, and they are made the sole judges of the necessity, feasibility and public utility of the road ; and a corporation when thus formed possesses a portion of the sovereign power of the state in its capacity to take by condemnation proceedings the lands of individual owners for its corporate purposes. Among the powers conferred upon such a corporation is one found in § 28 of the act, authorizing it to construct its road “ across, along or upon any stream of water, watercourse, street, highway, plank-road, turnpike, or across any of the canals of this state which the route of its road shall intersect or touch; ” but it is not authorized to construct its road “ in, upon or across any street in any city without the assent of the corporation of such city,” nor “ upon and along any highway without the order of the supreme court.”

Therefore, under the general railroad act, unless its power is curtailed or in some way limited by some subsequent act, this company, with the assent of the municipal corporation, can build its road into the city, crossing any of the streets in its route.

The principal contention, however, on the part of the land owner is that the authority given by the general railroad act to construct railroads across streets in the city of New York, with *604the assent of the city corporation, is taken away by the act, chapter 10, of the Laws of 1860 ; and so it was held in the court below.

That act provides that “ it shall not be lawful hereafter to lay, construct or operate any railroad in, upon or along any or either of the streets or avenues of the city of Hew York, wherever such railroad may commence or end, except under the authority and subject to the regulations and restrictions which the legislature may hereafter grant and provideand it repeals all other acts and parts of acts inconsistent therewith. The question turns upon the scope and meaning of the words, “in, upon or along,” the counsel for the land owner contending that they embrace the crossing of a street, while the counsel for the company contends that they only refer to railroads built along and through a street, and we are of that opinion. Such is their natural and ordinary import. According to general usage and the common .understanding of business men, a railroad simply crossing a street would not be considered to be constructed “ in, upon or along ” a street.

The act of 1860 was manifestly intended substantially as an amendment of the act, chapter 140 of the Laws of 1854. Prior to the latter act there had been no legislation to protect abutting owners against the intrusion of railroads into city streets, except as the construction of such roads was made subject to the assent of the municipalities. It had been found by experience that the municipalities could not be relied upon to give such protection, and hence it was provided in the act that the “common councils of the several cities of this state shall not hereafter permit to be constructed in either of the streets or avenues of said city a railroad for the transportation of passengers, which commences and ends in said city, without the consent thereto of a majority in interest of the owners of property upon the streets in which said railroad is to be constructed being first had ánd obtained.”

The act, by its terms, was confined in its operation exclusively to railroads commencing and ending in the city. Proceedings in the courts of this state, and the history of the times, show that the power conferred upon the common council in the city of Hew York was improvidently and unwisely exercised, and that the act was easily evaded by commencing a railroad outside the city, and bringing it into the city; and so the act of 1860 was passed to, remedy these evils. Both acts obviously dealt with street railroads, as no others were then in contemplation.

That the meaning we have attached to the words “in, upon or along,” in the act of 1860, is the legislative sense of them,' is made quite apparent by a reference to many legislative acts, authorizing and regulating the construction of railroads in this state. - It is believed that these words have never been used in any act so as to embrace the crossing of a street, but that one of the appropriate words “across,” “cross,” or “intersect,” has always been used in all legislation as to the crossing of streets by railroads.

In the act, chap. 263 of the Laws of 1831, to incorporate the Hew York & Harlem Railroad Company, it is provided in § 10 that, in case of locating the route of its road “ in or along ’ *605any public street of the city of New York, it should leave «sufficient space in the street on each side of the railroad for a public highway; and in § 11 it is provided that whenever it shall be necessary for the construction of the road to “ intersect or cross ” any stream of water, water-course or any road, street or highway, it shall be lawful for the corporation, with the consent of the city, to construct its road “ across or upon ” the same, provided that it shall restore the stream or watercourse or road, street or highway thus “ intersected ” to its former state, or in a sufficient manner not to have impaired its usefulness. By the act, chap. 300 of the Laws of 1835, “to enlarge the powers of commissioners of highways,” it is provided that whenever any association or individual shall construct a railroad upon land purchased for that purpose on a route which shall “ cross” any public highway, it shall be lawful for the commissioners of highways to give a written consent that such railroad may be constructed “ across or on ” such highway; and thereafter such association or individual shall be authorized to construct and use such railroad “across or on” such highway; but any public highway thus “intersected or crossed” by a railroad shall be so restored to its former state as not to have impaired its usefulness. By the act, chap. 216 of the Laws of 1846, “to authorize the construction of a railroad from New York to Albany,” it is provided in § 4, that the company could locate its railroad “ on ” any of the streets of the city of New York described with the assent of the city corporation; and in § 14 it is provided that whenever it shall be necessary for the construction of its road to “intersect or cross any stream of water or water-course or any road or highway,” it shall be lawful for it to construct its road across or upon the same ; but the corporation shall restore the stream or water-course or road or highway thus intersected to its former state, etc. By the act, chap. 140 of the Laws of 1882, it is provided that it shall be lawful for any individual, company, association or private corporation to build and operate a railroad “ on or across ” any highway upon certain conditions mentioned.

By chap. 252 of the Laws of 1884, the street surface railroad act, it is provided that any company organized under the act may construct and operate a railroad on the surface of the soil, “ through, upon and along ” any of the streets; and these words plainly have reference to railroads laid in and along the streets and not crossing them, except as the street in which it is laid crosses other streets. Chapter 65 of the Laws of 1886 is an act “ to secure adequate •compensation for the right to construct, maintain, use and operate or extend street railroads in cities and villages,” and it provides that the local authorities of any incorporated city or village to whom application may be made for consent to the construction" and operation of a street railroad, “upon, under, through or across any of the streets,” etc., must provide for a sale of the right, franchise and privilege of using the streets at public auction to the highest bidder as prescribed in the act.

Later in the' same session of.the legislature it was evidently *606perceived that it would be unjust and impracticable to require the conditions specified from a railroad merely crossing streets, and hence that act was amended by chapter 642 so as to confine its operation to railroads constructed “ over, under, upon or through” any of the streets, etc., the word “ across” being ¿rapped. There can be no doubt that the words quoted were intended to describe only railroads built along streets, and not merely crossing them.

But still more significant is the language found in subdivisions of § 28 of the general railroad act of 1850. That section first authorizes a railroad company organized under the act to construct its road “ across, along or upon” any street or highway, and “across” any of the canals of the state; and then provides that there shall be no authority for the erection of any bridge or other obstruction “across, in or over” any navigable stream; nor for the construction of any railroad “in, upon or across” any city streets without the assent of the city corporation, or “ upon and along” any highway without the order of the supreme court. Here the words last quoted clearly have reference to railroads built in and along highways, and not to such as merely cross them, and the word “ upon” does -not embrace such railroads. A railroad in a city cannot be constructed across a city street without thé assent of the city corporation, but it can be constructed across a country highway without the order of the supreme court.

It is not needful, I think, to search further through the statutes of this state for the legislative meaning of the words “ in, upon or along,” found in the act of 1860 Neither of them is used in the sense of “ across,” and if that had been intended the appropriate word found in many statutes, and evidently familiar to the legislature in all railroad legislation, would have been used. It was not the purpose of the legislature in the acts of 1854 and 1860, and it was not within the scope of those acts, to regulate the mere crossing of streets by railroads. The main purpose was the protection of abutting owners.

The interests of the city were substantially provided for in other acts. If it was the purpose by the act of 1860 to prohibit the construction of any railroad across any street as well as along any street without further legislative authority, a simple act prohibiting the construction of any railroad in the city of New York, without further legislative authority, would have been much more appropriate, as no railroad can be constructed in New York which does not cross or pass along some street.

It is further claimed, on the part of the land-owner, that the railroad proposed to be constructed is an elevated road, or both elevated and under-ground, and hence that the only authority for the construction of such a road is to be found in the act, chap. 606 of the Laws of 1875, generally known as the Rapid Transit Act But that act concerns only railroads wholly within one county or one city, and could not be made applicable to a road like this, tobe constructed in the two counties of Westchester and New York. It is not needful ndw to determine the precise scope of that act, as §40 thereof provides that the act shall not be construed to repeal, or in any manner to affect, chap. 140 of the Laws of 1850,, *607.and. that none of its provisions shall apply to any railroad company organized under any general or special law of this state for the purpose of constructing' or operating a steam railroad upon the surface of the ground.

My conclusion, therefore, is that the learned court below fell into error, and I cannot concur with my brethren.

Order affirmed, with costs.

Ruger. Oh. J., Finch, Gray and O’Brien, J. J., concur; Andrews, J., concurs on the second ground of Judge Peckham’s opinion, and also' on the ground that the obtaining of the consent -of a municipality to the construction of a road is a condition precedent to the exercise by the company of the power of eminent domain in the taking of private property therefor. Earl, J., reads for reversal.