Statement of case. It is no objection to proceeding under that act, that there are other lands in the same vicinity equally well adapted for the purpose, which possibly might be acquired by purchase. The location of the buildings and structures of the company is within the discretion of its managers, and courts will not supervise it ordinarily. A usufructuary right, either temporary as to its continuance, or limited as to its character, does not give to the company the property which it has a right, under the statute, to acquire. And whenever the proper running and operating its road, and the interests of the public require permanent structures, it is no objection to a proceeding to acquire the land in fee, that the company is a lessee of the premises for a term of years. (Argued November 21st, 1871; decided November 28th, 1871.) APPEAL by Elbert S. Kip, and wife, from an order of the General Term of the Supreme Court in the first department, affirming an order made at Special Term, appointing commissioners to appraise lands required by the applicant, the New York and Harlem Railroad Company, for the purposes of operating its railroad. The proceeding was initiated under the authority conferred by the amendment of the general railroad act in 1869, upon railroad corporations, to take the property of individuals for railroad purposes. The premises sought to be condemned by the proceedings, consisted of a plat of ground in the city of New York, between Forty-seventh and Forty-eighth streets, and Fourth and Lexington avenues. The property had been leased by the applicant of the present appellants in 1858, for the term of twenty-one years, at an annual rent of $5,000, and has been, and is now used for the purposes of the road, in connection with the transportation and delivery in New York, of hay, milk, and general freight. The present application is made upon the ground, that the great increase of the business of the road, in connection with the necessary changes made, and being made in its depots and warehouses, render it necessary to erect upon the plat of ground in question, permanent and very expensive structures, and that such structures ought not, and cannot prudently be put upon premises in which the applicant has but a short term. The appellants objected that other property in the vicinity, Statement of case. equally accessible and convenient, could be had, and that so long as the applicant had a right to the present possession and use of the premises under the lease, the statute did not authorize a proceeding to condemn the reversion, or to secure the fee of the property to meet the future requirements of the company. The Supreme Court overruled the objections, sustained the application and granted the order appointing commissioners to appraise the land, and that order is brought by appeal to this court. E. S. Gerry, for appellants. The statutes authorizing this proceeding are to be strictly construed. (R. and S. R. R. Co. v. Davis, 43 N. Y., 137; Webb v. M. and L. R. Co., 1 Eng. Rail. Cases, 439; In re W. and C. R. R. Co., 56 Barb., 456; Sharp v. Johnson, 4 Hill, 92, 99; Sharp v. Spier, 4 Hill, 76; Sprague v. Birdsall, 2 Cow., 419; Vanwickle v. Cam. and Am. R. R. Co., 2 Green (14 N. J. L.), 162; State v. Jersey City, 1 Dutch. (25 N. J. L.), 309; Adams v. Saratoga R. R. Co., 10 N. Y. (6 Seld.), 328; Vanhorne v. Dorrance, 2 Dallas, 304; Bradley v. N. Y. and N. H. R. R. Co., 21 Conn., 291; Morehead v. S. M. R. R. Co., 71 Ohio, 340, 341; Palairet's Appeal, 3 Phil. Legal Gazette, 169.) The land is not needed "for the purposes of its incorporation," and cannot be taken for warehouse purposes. (Morehead v. L. M. R. R. Co., 17 Ohio, 341; Webb v. M. R. Co., 4 M. & C., 116; Garside v. Proprietors of Trent and Mersey Navigation, 4 T. R., 581; Thomas v. Boston, etc., R. R. Co., 10 Metc., 472; Norway Plains Co. v. Boston, etc., R. R. Co., 1 Gray, 263; Illinois Central R. R. Co. v. Alexander, 20 Ill., 23; Richards v. Mich. Southern, etc., R. R. Co., 20 Ill., 404; Porter v. Chicago, etc., R. R. Co., 20 Ill., 407; Davis v. Mich. Southern, etc., R. R. Co., 20 Ill., 412; People v. N. Y. and Harlem R. R. Co., 45 Barb., 78, 80; Dry Dock R. R. Co. v. N. Y. and Harlem R. R. Co., 30 How. Pr. R., 47-49, in point.) It cannot be taken to save the company part expense. (Lloyd v. Chat., Lond. and Dover Railroad, 11 Jurist., N. S.. 385; Great N. R. R. Co., Statement of case. v. Manchester S. and L. R., 10 Eng. L. & E. R., 11; Redfield on Railroads, § 213; Flower v. L. B. and S. R. Co., 2 De Ger. & S., 330, 334, 336.) It can only be taken for the necessities, not the convenience of the company. (Plairet's Appeal; The C. R. Co. v. Greeley, 17 N. H., 57; Lindsay v. Connors, 2 Bay. & C., 6; State v. Com'rs of Ill., 23 N. J., 510; Mayor of A. v. O. and P. R. R. Co., Penn., 360 ; S. W. R. Co. v. Board of H., 4 E. & B., 189.) The present application not justified by any public necessity, and the right of eminent domain extends no further. (Bennett v. Boyle, 40 Barb., 557; Varick v. Smith, 5 Paige, 137, 159; S. C., 9 id., 557, 559; Beekman v. Saratoga, etc., R. R. Co., 3 id., 45, 73; Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend., 9; People v. Sup. of Westchester, 4 Barb., 64, 75; Matter of Albany St., 11 Wend., 149; Matter of J. and C. Streets, 19 Wend., 659; Embery v. Conner, 3 Com., 511; Nesbet v. Swanby, 39 Ill., 110; Clark v. White, 2 Swan, 540; Hoge v. Swan, 5 Md., 237; Ten Eyck v. Delaware and R. R. R. Co., 3 Ham. (18 N. J. S.), 200; Jinsman v. B. and D. R. R. Co., 2 Dutch (24 N. J. S.), 48; Costar v. I. W. Co., 18 N. J. Eq. (3 E. C. Green), 54, 518; Parham v. Justices D. Co., 9 Ga., 341, 353; Powers v. Bergen, 6 N. Y., 358, 367; People v. White, 11 Barb., 24, 32; White v. White, 5 Barb., 474, 485; Embury v. Connor, 3 Comst., 571; Taylor v. Porter, 4 Hill, 140; Sadler v. Langham, 34 Ala., 311, 332; Warne v. Smith, 5 Paige, 159; Wilkinson v. Leland, 2 Peters, 627, 657; State v. Brown, 27 N. J. S. (3 Dutch), 13, 28; W. B. and B. Co., 6 How. U. S., 507; Lancis' Appeal, 55 Penn., 16; M. S. Co. v. Mayor, etc., 4 Caldwell, 419; Eldridge v. Smith, 34 Vt., 484, 496; State v. M. and E. R. R. Co., 25 N. J. S., 437; Baldwin v. M. of N. Y., 2 Keyes, 394; Adder v. Ball, 3 Dall., 147.) As the company has a lease, the proceeding is premature and unnecessary, and is an effort to impair the obligation of a contract. (W. R. R. Co. v. Dix, 6 How. U. S., 516; Young v. Harrison, 6 Ga., 130; Ford v. Tiley, 6 Barn. & Cres., 325; Bowdell v. Parsons, 10 East, 359; Elderton v. Emmons, Opinion of the Court, per ALLEN, J. 4 House of L. Cas., 624; Atterson v. Stevens, 1 Jurist, 196.) A legislative enactment cannot vitiate a contract, and the company cannot do so by invoking the rights of eminent domain. (Brooklyn Park Com'rs v. Armstrong, 44 N. Y.; Lloyd v. S. C., and D. R., 11 Jurist U. S., 385; Henderson v. R. R. Co., 17 Texas, 577-9; McCarty v. Sadler, 12 Cal., 531; 2 Kent Com., 340; 2 Story on the Constitution, § 1385; Dartmouth College v. Woodward, 4 Wheat. R., 625; Fletcher v. Peck, 6 Cranch, 137; Charles River Bridge v. Warren, Bridge et al., Peters' S. C. R., 578.) The Constitution authorizes the taking of land for public use, not the taking of the title of land already subjected to public use. (Edgerton v. Huff, 26 Ind., 35; Giesy v. C. and C. R. R., 4 Ohio, 308.) M. Beach, for respondent. The corporation is the only judge of what property is most appropriate to its wants. (Oswego Bridge Co. v. Fish, 1 Barb. Ch., 547; Lund v. Midland R. R. Co., 34 L. J., Ch. 276; 1 Redfield on Railways, 236; Stockton and Darlington R. R. Co. v. Brown, 9 H. of Lord's Cases, 246.) All required to be shown as a reasonable, not an absolute, necessity. (Boston Waterpower Co. v. B. and W. R. R. Co., 23 Pick., 360; B. and N. Y. R. R. v. Brainerd, 9th N. Y. R., 100.) The lease does not affect the proceedings. The power of the State to resume title is implied in every conveyance. The lease is subject to the same conditions. (Doo v. The London and Croydon R. R. Co., 1st Railway Cases, 257; Stone v. Commercial Railway Co., 4th Mylne & Craig, 121; Mason v. Stokes Bay and Pier Railway Co., 32 Law J. Chan., 110.) ALLEN, J. That the land and premises, the title to which, the applicant seeks to acquire by these proceedings, are required for the purposes of the corporation is beyond dispute, as is also the fact that the corporation has been unable to agree for the purchase, by reason of the unwillingness or inability of the owners, the present appellants, to treat for the sale of the same for railroad purposes. Opinion of the Court, per ALLEN, J. The best, and highest evidence of the necessities of the applicant is, that since 1858, the company has been in the actual use and occupation of the land at a large annual rent, and at a large expenditure for structures thereon, for purposes connected with the running and operating its railroad. While courts will not allow railroad corporations to avail themselves of the statutory grant of power, to take lands in invitum, by taking that which they do not require for a bona fide purpose, sanctioned by the act of the legislature, when really required in good faith for the purposes of the act, they will not interfere to prevent the taking. (Webb v. The Manchester and Leeds R. Co., 4 Mylne and Craig, 116.) It is now quite too late to object, that the objects and purposes of railroad corporations are not public, or that the duties devolved upon them, and the services rendered by them are not of a public character, and in furtherance of public interests. The public have an interest in the use of a railroad, and in the proper performance of every power within the franchise conferred upon a railroad corporation, and hence every facility needed by such corporation is for public purposes, and whatever is required to enable the corporation to perform its duty to the public, is within the principle which permits a delegation of power to it. The right of eminent domain, which is but a right of the people or government to resume the possession of lands for public use, and subject to which right property is always held, may be delegated to individuals, corporations or municipalities for like use, and that the construction and operating of a railroad is such a use as justifies a delegation of this right is now beyond question, and is not open for consideration. (In re R. & S. R. Co. v. Davis, 43 N. Y., 137; Beekman v. Saratoga and Schenectady R. Co., 3 Paige, 45.) It is undoubtedly true, as claimed in behalf of the appellants, that the grant of power being in derogation of common right is not to be extended by implication, and that the act conferring the power must be strictly complied with. These principles are elementary. But statutes granting these powers are not to be construed so literally, |