Opinion
Argued January 31, 1888
Decided February 28, 1888
O.D.M. Baker for appellant. James W. Perry for respondent.
The power of eminent domain which resides in the state as an attribute of sovereignty, is nevertheless dormant until called into exercise by an act of the legislature. Until a statute authorizes an exercise of the power, it is latent and potential merely, and not active or efficient, and the state can neither exercise the prerogative, nor can it delegate its exercise, except through the medium of legislation. Therefore it is that wherever an attempt is made either by the officers of the state or by a corporation organized for a public purpose to take private property under the power of eminent domain, the officers or body claiming the right must be able to point to a statute conferring it. In the absence of statutory authority private property cannot be invaded by this power, however strong may be the reasons for the appropriation. In construing statutes which are claimed to authorize the exercise of the power of eminent domain, a strict rather than a liberal construction is the rule. Such statutes assume to call into active operation a power which, however essential to the existence of the government, is in derogation of the ordinary rights of private ownership and of the control which an owner usually has of his property. The rule of strict construction of condemnation statutes is especially applicable to delegations of the power by the legislature to private corporations. The motive of the promoters of such corporations is usually private gain, although their creation may subserve a public purpose. When such corporations claim to exercise this delegated power, the rule of strict construction accords with the ordinary rule that delegations of public powers to individuals or private corporations are to be strictly construed in behalf of the public, and by the other principle that private rights are not to be divested except by the clear warrant of law.
The right of the Poughkeepsie Bridge Company to take the land of Sanford embraced within the line of approach located by the company in 1887, is resisted by him on the ground that the filing of the map and profile of the bridge and its approaches in 1873, operated as a legal location of the bridge and the approaches, and that the power of eminent domain conferred by the charter, is by the true construction of the act, confined to the taking of lands within the lines of the original location. The bridge company on the other hand insists that it has the right to condemn land within the location of 1887, although not embraced in the location of 1873, upon two grounds, first, that by the true construction of the charter the company is empowered to locate and construct at any time, and from time to time, whenever in the judgment of the board of directors it shall deem it necessary, new approaches to the bridge within the two-mile limit, and for that purpose to condemn lands on the line of such new avenues of approach; and second, that under the charter it has the right to change any line of approach at its discretion, with the same power to take private property in invitum as pertained to the original location. We are of opinion that neither of the claims urged on behalf of the company is well founded. The claim that the legislature intended to confer upon the company the power to take lands at any time in the future and at any point within the two-mile limit for new approaches, should have clear support in the language of the charter before it should be allowed to prevail. If the claim is well founded it permits the company to hold suspended over all the lands in the city of Poughkeepsie, within two miles of the bridge, for all time, the power of eminent domain to be exercised in its discretion. It would certainly be an extraordinary grant of power to a private corporation which would expose a community to the uncertainties attendant upon such a state of the law. The claim has, we think, no support in the charter. It is doubtless true that more than a single avenue of approach on either side of the bridge was contemplated when the act was passed. The bridge, as originally designed, was to be both a railroad bridge and a bridge for ordinary highway uses. The second section therefore empowered the corporation to purchase, acquire and hold real estate for the site of the bridge "and necessary avenues of approach." The fifth section authorized the board of directors to make examinations and surveys with a view to the selection of the "most advantageous site for the said bridge, buildings, structures and yards, and the avenues of approach," and to enter upon private lands for that purpose. The fourteenth section expressly enacts that "before constructing any part of the bridge, its appurtenances or avenues of approach," the company shall make and file a certified map and profile of the same as intended to be adopted. The thirteenth section grants the power of eminent domain to be exercised "for the purposes as herein provided." It will be observed that the map and profile mentioned in the fourteenth section, which the company is required to make and file before constructing any part of the bridge, is to comprehend the "avenues of approach" in the plural. The examination and surveys authorized by the fifth section are for the purpose of locating a site for the bridge and the "avenues of approach." It is, we think, the obvious construction of the charter that the legislature intended that the company should, in the first instance, locate the bridge and the avenues of approach thereto, having in view present and prospective interests, and that the site and lines of approach should be located before the work of construction should be commenced. We find no indication in the charter that new locations can be made from time to time. The avenues of approach by the fifteenth section were to be located with a view of connecting with existing highways and with highways proposed to be laid out, and with existing railroads and those which might thereafter be constructed. But there is nothing to indicate that the company was to await the actual laying out of new highways or the organization of new railroad corporations before finally determining and locating the approaches. No duty was imposed on the company to connect with new railways or with new highways. The company was simply required to permit existing or new railroads to connect with the avenues of approach to the bridge. The map and profile filed in 1873 was a legal location of the bridge and the approaches. It was made and filed pursuant to the plain requirements of the charter. It is possible that if the company, without having made and filed the map, had commenced the construction of the bridge without complying with this condition precedent, it could thereafter have made its location upon the construction that the fourteenth section was primarily a limitation upon the time of commencing the construction of the bridge rather than upon the time of filing the map and survey. This we need not consider. The company did comply with the statute and did file the map and survey locating the bridge and its approaches. This, we think, exhausted its power of choice and the location so made was final and could not be changed in the absence of legislative authority. This view is supported by judicial opinions and decisions. ( H. D. Canal Co. v. N.Y. E.R.R. Co., 9 Paige, 323; Mason v. Brooklyn City N.R.R. Co., 35 Barb. 381; Morehead v. Little M.R.R. Co., 17 Ohio, 349; Same v. Naylor, 2 Ohio St. 235.) The company might have originally selected the line of 1887. But it selected another line, and the choice once made was final in the absence of statutory authority to make a change. (See Wood's Railway Laws, 752 et seq and cases cited.) The second ground urged in behalf of the bridge company to support these proceedings rests upon what seems to us an erroneous construction of section 13 of the charter. It is insisted that this section incorporates by reference into the charter not only section 14 of the general railroad act of 1850, and the related sections prescribing the proceedings to be taken to acquire title to land authorized to be taken for railroad purposes, but also section 23, which authorizes corporations organized under that act, to change the route first selected under the circumstances mentioned in the section, and to make and file a new map, and which also confers power to acquire title to the lands embraced in the altered or changed route. The power to change the route of a railroad was first conferred on railroad corporations by chapter 404 of the Laws of 1847, after the decision in the case of Hudson and Delaware Canal Company v. New York and Erie Railroad Company ( supra,) which decision probably led to the enactment of that statute. There is no express power given to the bridge company by its charter to change its approaches when once located, and section 23 of the general railroad act, which confers the power upon railroad corporations, cannot, upon any reasonable construction, be regarded as incorporated into the charter of the bridge company by section 13. That section simply incorporates into the charter the sections of the general railroad act which prescribe the procedure for acquiring title to lands. It does not enable the company to re-locate a line once located, or to acquire lands for such re-location. Nor is the bridge company a railroad corporation. It is a bridge corporation, with power to construct a bridge for the passage of railroad trains, and as incident to this use to make approaches and to lay rails thereon, to adapt it to this use. It is not organized to operate a railroad, but to provide facilities for railroads to cross the Hudson river. By section 13 of the charter the court is authorized to modify the formal part of the proceedings for acquiring lands permitted in the general railroad act, as may be required to "apply the same to the corporation hereby created, instead of a railroad corporation."
Upon the grounds indicated, we have reached the conclusion that no legislative authority exists to support this proceeding. The new line of 1887 is probably preferable to that of 1873. But we are of opinion that without a new grant of power, lands not embraced in the original location, cannot be taken compulsorily by the company.
The orders of the General and Special Terms should, therefore, be reversed and the proceedings dismiss
All concur.
Ordered accordingly.