be futile to proceed in the matter while the consents were lacking. Though that consent was needed by the company before it could occupy the street, Judge ANDREWS' opinion in the case proceeded upon the theory that it was an independent condition, and it was not an element of the authority of the court to proceed upon the particular matter before it. That proceeding was instituted to meet that condition of the act, which required that, if the consent of property owners was refused, the determination of the court in lieu thereof should be had. The only prerequisite to such application, as Judge ANDREWS held, was "an inability to obtain the consent of property owners." As it was not a proceeding to take private property by condemnation, but was a step in the direction of obtaining one of the consents needed, as preliminary to the work of construction and operation, his language that the act did not prescribe the order in which the several consents shall be obtained obviously has reference to the consents, which were precedent conditions to operation of the company's franchises. In his opinion he holds that there were three precedent conditions to which the right of the company to construct and to operate was subject, namely: "The consent of the local authorities; the consents of property owners, or, in lieu thereof, the determination of commissioners in its favor; and the consent of the companies having coincident routes." The opinion bore upon the question of whether the proceeding for the appointment of commissioners to determine as to the petitioner's project, as a substitute for the required consent of property owners, ought to be maintained; and it may be distinctly read as an authority in support of the proposition that precedent conditions are affixed by the act to every charter, and their fulfillment must be shown before construction and operation can be initiated, or steps thereto taken by the corporation.

The opinion of this court in re New York Cent. & H. R. R. Co., 77 N. Y. 248, contains nothing adverse to these views. That was a proceeding under the general railroad act to acquire a tract of land along the river front, which was intersected by streets; and the point was made that the order appointing the commissioners, etc., did not give the petitioner control of the streets of the city, and the petitioner might not be able to carry out its plans, and hence the condemnation of private interests in land should not be permitted. MILLER, J., there said that "there is no rule which requires that under the circumstances presented, where different rights are essential in order to acquire an interest in and for railroad purposes, the acquisition of one interest should precede the other, or that proceedings should be had to acquire each of them at

the same time." The learned judge held that the consent of the city was not necessarily preliminary to the acquisition of the land of the appellants, and might be lawfully obtained after the right to the land has been acquired. The provision of the general railroad act referred to was not in the shape of some condition inhibiting or suspending the operation of the chartered franchises of the company to construct and operate its railroad. It was merely a limitation upon the construction to be placed upon the statute. The provision was that nothing contained in the act should be construed as authorizing the construction of any railroad in the streets of a city without its assent. The effect of that limitation was not to prevent any construction and operation of the railroad; but, where the railroad company, in the operation of its franchises, sought to make any use of streets in a city, the general authority of the statute should not be deemed to cxtend to that use without the assent of the municipality. So the opinion in the case cited has no relevancy to the case at bar. We are furnished with a judicial construction of the force of language precisely similar to that which gives rise to our present discussion.

*
* *

In re Kings Co. El. R. Co, 105 N. Y. 97, it was sought to appropriate an interest in lands to the use of the railway, and the proceeding was there, as here, to obtain the appointment of commissioners of appraisal. The petitioner there was organized under chapter 606 of the Laws of 1875, commonly known as the "Rapid Transit Act; " and the point inter alia, was taken, in opposition to the right of the petitioner to maintain the proceeding, that it never obtained the consent of the local authorities having control of that portion of the street upon which it was proposed to construct the railway. The rapid transit act provided that "the consent of the owners of one-half the property, and the consent also of the local authorities having the control of that portion of the street or highway upon which it is proposed to construct or operate such railway, be first obtained. Judge DANFORTH, who delivered the opinion in that case, in the course of it, construed that provision to mean that, "until the consent of each was obtained, nothing could be done by way of construction." That eminent jurist held that "the power contingently conferred by the legislature to construct the railway became absolute, for the conditions, imposed upon its exercise had both been performed. The abutting owners had consented, and so had the municipal authorities." It would be manifestly unjust to hold otherwise as to the necessity of first showing compliance with these constitutionally imposed conditions before a proceeding can be maintained which has for its end

the taking of private property against the consent of its His interests should not be permitted to be affected by the burden and cloud of such proceedings, when it does not appear that the right to construct its railroad is yet vested in the corporation.

owner.

The further ground taken by the property owners, in their efforts to oppose the appropriation of their property, is that a map should have been filed by the petitioner. Failure to file Authority to acquire private property for its railmap of route. road purposes is conferred upon petitioner by the act of 1884, and the mode of its exercise is through the proceedings described in the general railroad act of 1850. The corporation, which is formed under the act of 1884, is given the powers and privileges granted by that general act, and reference to its provisions shows in what manner and by what special proceedings real estate may be acquired when there is an inability to acquire it by agreement. The act of 1850 details what the petition which initiates the proceedings must contain by way of allegation for the purpose, and what, therefore, must be proved to the court. Among other things, the petition must allege that the company has made a map or survey by which its line or route is designated, and that they have located their road according to such survey, and filed certificates of such location in the clerk's office of the county. This allegation was denied; and it was not proved, and it is not pretended, that any map was made and filed of the route, in connection with which this proceeding is sought to be maintained. The appellant argues that a map is not required in the case of street railroads; or, if it is, that the one filed upon the previous proceeding of the petitioner was sufficient. The point is untenable. For the validity and force of such a proceeding, it is essential that all the steps pointed out by the general statute should be strictly followed. It may be that in this particular case no prejudice would be worked by the failure to make and file a map; but the question is not of the particular necessity, but it is one which goes to the foundation of the right of the petitioner to maintain the proceeding. Where it is sought, by resort to the special proceedings authorized by the statute, to take lands in invitum the owner, they must be followed strictly, or they are unavailing. It is only where the steps are all taken which the sovereign power has prescribed that title to the private property is transferred from its owner. The rule is too familiar to require discussion at this day that a statute authority in derogation of the common law to divest the title of one must be strictly pursued, and all prescribed requirements strictly observed and conformed to, or it will be ineffectual for the purpose. Sharp v.

Speir, 4 Hill (N. Y.), 76–86; Adams v. Saratoga & W. R. Co., 10 N. Y. 329; In re City of Buffalo, 78 N. Y. 362, 366; In re Water Com'rs, 96 N. Y. 351, 357. The fact that the proceeding is for the purpose of acquiring private property is argument enough, if any argument were needed, in behalf of a statutory prescription. The landowner is entitled to the notice provided for, and to the opportunity of knowing exactly by the map and survey, which has been made and filed, where and how the line or route of railroad is projected. Such knowledge is evidently of so practical and available a character that it is provided for in order to enable the property owner the more readily to determine the question of acquiescence or of opposition. But discussion is endless on this head. The act of 1884 refers the company to the provisions of the general act of 1850 for purposes of acquiring private lands, and no reason in law exists why those provisions should not be as binding, and the protection to the private citizen be as sacredly maintained, in the case of a street railroad as in that of a steam railroad. The rule is a salutary one, and should be respected for that reason, as well as for its absoluteness under the statute. For the reasons expressed in the foregoing opinion the order appealed from should be affirmed, with costs. All concur, (EARL, J., in result, on last ground discussed in opinion,) except RUGER, C. J., not voting.

Eminent Domain-Filing of Map of Proposed Route. See Cory v. Chicago, B. & Q. R. Co. (Mo.), 44 Am. & Eng. R. Cas. 163, note 189; West v. Milwaukee, L. S. & W. R. Co. (Wis.), 10 Id. 415; Chicago & Northwestern R. Co. v. Chicago & Evanston R. Co. (Ill.), 25 Id. 158; Murphy v. Kingston & P. R. Co. (Ont.); 25 Id. 179.

Construction of Railroad in Street-Consent of Local Authorities.-Pembroke v. Canada Cent. R. Co. (Ont.), 14 Am. & Eng. R. Cas. 117; note 20 Id. 164.

Condemnation of Land for Street Railway-Power to Condemn Land for Line Which Does not Run Along Streets. In South Beach R. Co. v. Byrnes, 119 N. Y. 141, it was held that a company organized to construct and opera street railroad along certain specified streets, cannot condemn land for the purpose of constructing a railway line no part of which runs on said streets, under the New York Railroad Act of 1850, which allows a railroad corporation to condemn such land as is "required for the purposes of its incorporation." The court said: "The power is not general and unlimited. The company cannot condemn what it pleases, but only such and so much land as the proper execution of its corporate purposes shall require and render necessary. What, then, were the purposes of the incorporation of the South Beach Railroad Company? Obviously, they are those, and those only, which the law of its organization describes and defines, and which are certified in its articles of association, operating when filed as its charter, and the measure of its authority. Referring to those, we see that the corporate purposes were not to build a railroad between specified termini by the most feasible route, which is the characteristic of an ordinary railroad, but to build and operate a street railroad such as the act of 1884 contemplates and regulates; and, not only that, but one running along three specified avenues in the town of Edgewater, and not at all through

or along private property. Such are the prescribed and declared purposes of the incorporation; and the company, it may be conceded, might have the right to acquire by condemnation such and so much of private property as should be reasonably necessary to accomplish those purposes. Now, the chief element of a street railway as authorized by the act of 1884 is that it is built upon and passes along streets and avenues for the convenience of those living or moving thereon. Its fundamental purpose is to accomodate the street travel, and its motive power is dictated and regulated to that end; and while, consistently with its general object, it may need for switches or storage or stables or stations the land of private owners, yet that necessity is only incidental to the main purpose of a line along the streets accommodating the street travel. Here, the land of Mrs. Byrnes is needed to build the main and principal part of the line, only that it may avoid the streets altogether. The act of 1884 stamps an indelible mark upon the corporations which it organizes. The consent of the local authorities is to be obtained, and that of a certain portion of the abutting owners; or, in default of the last, the certificate of chosen commissioners. Every step of the way, through all the conditions of the act, it plainly contemplates a railway along the streets and avenues of a village or city." Dedication of Land for Street by Railway Company-What Does not Constitute-Agreement With City.-Where a railroad company desired to have a portion of an alley vacated in order to build a passenger depot, and presented a petition to the common council offering to donate to the city a certain strip of ground to be used as a street or alley in consideration of the vacation of the said alley, and the city, through its proper officers, rejected the proposition of exchange by failing to act thereon, but assessed the benefits to the company growing out of the vacation of the said alley at a certain sum, which sum was paid by the company into the city treasury, and afterwards the company, for the purpose of making a convenient and necessary way of approach to, and egress from, its passenger depot, curbed and paved the strip of ground which it had proposed to donate to the city, and constructed convenient and necessary gates, all of which was done at its own expense, the said strip of ground did not become a public street of the city, subject to a right of all the citizens to use it as a public thoroughfare. An abutting property owner could not enjoin the company from erecting a fence along the boundary of said strip of ground. Pennsylvania Co. v. Plotz, 125 Ind. 26.

Condemnation of Company's Lands for Street-Permission by City to Another Company to Lay its Tracks in Such Street-Compensation. Where a city instituted condemnation proceedings against the plaintiff railroad company for the purpose of extending a street through its land, and a decree was entered by consent condemning the land for street purposes and providing that the company "shall have the right to keep and maintain its present tracks and switches upon said land, and shall have the right to construct such other tracks, switches and turnouts upon said land and across said street, when opened, as it may deem necessary for the transaction of its business; such reservation is not the grant of an exclusive privilege, but only equivalent to the usual permission to occupy the street with its tracks, and plaintiff is not entitled to compensation from defendant railroad company laying its track along the street by permission of the city and across plaintiff's tracks therein, nor can it enjoin defendant from so laying its track, when authorized by the city to do so. Such crossing of plaintiff's tracks by the defendant's track, and the delay incident to plaintiff's trains by the passage of defendant's trains over the latter's track, is not a taking or damaging of private property, each having an equal right to use the street. Kansas City, St. J. & C. B. R. Co. v. St. Joseph Terminal R. Co., 97 Mo. 457.