ers to condemn, and the petition whereon the same was made. Mr. J. B. Vredenburgh and Mr. Jos. D. Bedle, for prosecu

tors.

Mr. Jno. R. Emery and Mr. Gilbert Collins, for defendant.

Case stated.

MAGIE, J.-This certiorari has brought before us the application of the National Docks & New Jersey Junction Connecting Railway Company (which will for brevity. be called the "Connecting Railway Company") for the appointment of commissioners to condemn lands for the railroad of applicants, and the order appointing commissioners thereon. Numerous objections to the proceedings have been made by the United New Jersey Railroad & Canal Company and the Pennsylvania Railroad Company, who are prosecutors of the writ. To make clear the question raised by the objections which have been considered, it seems necessary to state the following facts, which appear from the return, or the affidavits taken under a rule:

The Connecting Railway Company became incorporated under the general railroad law. On December 10, 1888, they filed a survey of the route and location of a railroad they proposed to build. The location was defined by a centre line, specifically described, on each side of which 371 feet were proposed to be included. The center line may be generally stated as commencing at a point on the route of the National Docks Railway Company, and running to a point on the route of the New Jersey Junction Railroad Company. The desired location passed from south to north over lands and railroads owned by one, and leased and operated by the other, prosecutor. In passing north, it first crossed the old main line of the railroad at a point east of the Bergen cut; then lands of prosecutors lying between that line and the present main line of the railroad; then the present main line of the railroad at a point east of the cut through Bergen Hill; then lands lying between the present main line of the railroad and the line of freight tracks, which, emerging from Bergen Hill, and curving somewhat to the north, runs on an elevation to Harsimus Cove, and the location terminates on the route of the New Jersey Junction Railroad Company. The last course of the entire line is thus described: "Thence curving to the left, on a radius of 573 7-10 feet, a distance of 140 feet to station 25x94.8, a point on the line of the railroad of the New Jersey Junction Railroad Company, be the said distances more or less, said point being the point of departure of Branch Railroad No. 7 of last mentioned railroad company, as filed March second, 1886, in the secretary of state's office." It appears that the old main line above men

tioned, though not now used, has never been abandoned, and prosecutors design to utilize it, in connection with a projected yard, for the storage of passenger cars when not running. Prosecutors, under legislative sanction, have contracted to elevate their main line through Jersey City to the ferry. Such elevation will necessitate the abandonment of the yard now used to store such cars, and to make a yard for that purpose in some convenient place. The design of prosecutors is shown to be to use the lands between the old main and the present main line and Bergen Hill for that purpose, and they have been engaged in preparing it by removing portions which were above, and filling portions which were below, a convenient grade. Upon the present main line the whole passenger traffic and some freight traffic is conducted. The lands between that line and the Harsimus freight line are meadow lands, partially filled. The New Jersey Junction Railroad Company have located a railroad running from a point in the township of Weehawken south to and across the lands and railroad of prosecutors. They have only constructed so much of the main line thereof as crosses the Harsimus freight line, and extends a very short distance beyond. The crossing is below the freight line, which passes by a bridge supported by abutments. The junction company have also located and constructed a branch, called "Branch No. 7," which diverges from the main line about where it emerges from the said abutments, and, curving to the east, makes a connection with prosecutor's main line of railroad.

The application of defendant makes known the rights it seeks to obtain over prosecutors' lands and railroad thus: (1) The entire line of the strip proposed to be affected is described by courses and distances commencing at the south and running north; the last course being thus set forth : "Thence curving to the left, on a radius of 573 7-10 feet, a distance of 140 feet to station 25x94.8 of said center line, the last mentioned station being a point on the route of the New Jersey Junction Railroad, as filed in the office of the secretary of state." (2) It proposes to cross so much of prosecutor's property as lies south of the northeasterly side of the present main line by an open cut, walled on each side with walls of a specified thickness and height; which cut will pass through the embankment, roadbed, and rails of the old main line, and the walls will rise at that point more than eight feet above the grade of that line. The walls at the crossing of the present main line will correspond in height with walls on which the bridge of that line is now supported. The top of the proposed wall will be in a straight line between the heights at the old main and the present main line. By this plan, defendant's

road passes below the present main line without disturbing it; but, if walls are built as proposed, prosecutors, if they desire to utilize the old main line, or to establish the intended yard for passenger cars, must elevate the grade of the tract and lands to correspond with these walls. Much evidence has been taken as to the effect of such a change of grade. On one hand, it is contended that it is shown that a yard for passenger cars cannot safely be maintained and operated under the changed conditions; on the other hand, it is claimed that the yard may be established and operated at the changed grade with safety. Plans presented to show that it may be so done, indicate, however, that prosecutors will be required to change the grade of the main line from that designed in the proposed elevation. (3) As to so much of said lands as lie northerly of the present main track, it is stated that defendant" requires, and desires to acquire, a width of 271 feet on each side of its center line, except at or near the extreme northerly end thereof, where it requires 37 feet in width on the easterly side of said center line." The land so required is then described by metes and bounds. From this description it appears that the west 22 1-2 feet of the width at the north end of the tract does not adjoin the New Jersey Junction Railroad, but abuts on lands of prosecutors. maining width extends over 18 feet further north, and beyond the southeast corner of the west abutment of the Harsimus line.

cross other

roads Gener

The right of the Connecting Railway Company to the condemnation it has thus sought must have been obtained, if obtained at all, from the provisions of the general railroad law, under which it obtained its corporate Authority to powers. This act as originally passed, or as since amended, does not contain any express grant of allaw. power to a corporation incorporated under its provisions to cross the railroad and lands of a previously incorporated railroad company. Special charters which authorized the construction of a railroad between two specified points had, however, then been judicially determined to give, by implication, sufficient authority to cross the road of intervening railroads, and to condemn a right to thus cross. was therein held that no express grant was necessary. Morris & E. R. Co. v. Central R. Co., 31 N. J. Law 205; State ex rel. National R. Co. v. Easton & A. R. Co., 36 N. J. Law, 181. It is apparent that the express grant contained in the general railroad law, to any corporation organized thereunder, of a right to build a railroad between such points as such corporation shall select, agreeably to the terms of the act, will justify a like implication; and it is equally clear that the legis

It

lature designed to thus authorize the crossing of intervening railroads, because, by the thirty-sixth section of the original act, provisions were made respecting such crossings. That such a right exists by virtue of the provisions of the law in question has been recognized in the court of errors and in this court, and cannot now be questioned. State ex rel. Morris, etc., R. Co. v. Hudson Tunnel R. Co., 38 N. J. Law, 548: State ex rel. Lehigh Val. R. Co. v. Dover & R. R. Provisions of Co., 43 N. J. Law, 532, 14 Am. & Eng. R. Cas. 87. statutes. The thirty-sixth section of the general railroad law contained provisions regulating, and to some extent restricting, the right of a railroad incorporated thereunder in crossing another railroad. The section has been frequently amended, but the provisions to which I allude have remained unchanged. Supp. Revision, p. 827, pl. 18. These provisions are thus expressed: Provided, further, that no corporation organized under this act shall be authorized to take, use, or occupy by condemnation any lands belonging to the state of New Jersey, or any franchises, lands, or located route of any bridge, railroad, canal, turnpike, or other corporation chartered for the purpose of facilitating transportation, except for the purpose of crossing said lands or route of said corporation, and except the lands of such other corporations not necessary for the purposes of their franchises: and provided, further, that a railroad may be located or constructed under this act on the surveyed routes or location of any other railroad, with the consent of such corporation, and not otherwise." These curiously mingled positive and negative provisos, and exceptions upon exceptions, were considered by VAN SYCKEL, J., in State cx rel. Morris, etc., R. Co. v. Hudson Tunnel R. Co., supra, and their meaning determined, so far as was essential to the case before the court. The case now in hand requires a fuller statement of their meaning. The following, which is in accord with the views of that Statute con- learned justice as far as he deemed it necessary to express them, shows, in my judgment, the true construction of these provisions: (1) Lands of railroad companies, not necessary for the purposes of their franchises, may be taken and condemned without restriction, (2) Other lands, and also the located routes of such companies, may be taken and condemned for the purpose of crossing the same, and no other purpose; and to that extent franchises may also be taken and condemned (3) There can be no location or construction of a railroad on the surveyed routes and location of another railroad except by consent; but this prohibition does not refer to the location or construction of a mere crossing. The statute in these provisions recognizes, therefore, a

strued.

distinction between the rights which a new company, projecting a railroad across another railroad already established, may acquire. As to lands not necessary for the purposes of the franchises of the latter road, condemnation may be had in the same mode, and with the same effect, as the condemnation of lands of private individuals. As to other lands, the possible acquisition is limited to a right of crossing. The application of defendant is made in accordance with this distinction. Over a portion of the course on prosecutors' property it demands a right of crossing by an open cut. Over the remainder it seeks to acquire a tract described by metes and bounds, and its demand is precisely such as is made when the condemnation of lands of any private person is sought.

The first objection which has been considered is one which challenges defendant's right to thus condemn the specific tract so described. It is first contended that since

demn tract in

the right thus to acquire lands of another railroad Right to concompany is expressly limited to such lands as are question. not necessary for the purposes of its franchises, the fact that the lands sought to be condemned generally are not necessary for such purposes is jurisdictional, and should appear in the proceedings. It is next insisted that the evidence shows that all the lands in question are necessary for the purposes of its franchises. Although not now used for such purposes, it is claimed that they have been purchased, and will be required in the future, for those purposes, and may therefore be considered as necessary for such purposes, within the principles laid down in State ex rel. Morris, etc., R. Co. v. Haight, 35 N. J. Law, 40. It is lastly urged that, if the last point is left in doubt by the evidence, there is proof that some part of this tract cannot be thus taken. The last contention has been deemed so plainly correct that it has not been thought necessary to express any opinion upon the others.

The freight line to Harsimus Cove was located under an "Act to enable the United Railroad and Canal Companies to increase their depot and terminal facilities at Jersey City," approved March 30, 1868, and a route of 100 feet in width was authorized to be located, and a railroad built thereon. This, then, was the located route of a railroad, over which defendant's right is limited to a mere crossing. The evidenceand exhibits make it plain that the described tract encroaches upon this located route. The petition seeks to acquire so much of that route, in general terms, for the general purposes of defendant's railroad, and not merely for a crossing. The act does not authorize such a condemnation. It is settled that where a petition seeks to condemn more land than the petitioner is authorized to take by condemnation, and avers