defendants' main line, is to be 524 feet long, walled on both sides with walls constructed of stone resting on solid foundation, 12 feet in width at the bottom and 5 feet in width at the top, with a batter on the inner face of half an inch to a foot. The inner faces of the wall are to be 30 feet apart, at the level of the rails in the proposed road. These walls are to unite with and continue the walls which support the defendants' main line over the cut now existing under that line, and to gradually rise, upon a grade of eighty-two hundredths of a foot to each 100 feet, until, at Railroad avenue, they shall be 31 feet above the crown of the roadbed of that highway. The walls are to be competent to support half through girder railroad bridges at every point, and the defendants are to have the right to use the walls to support such bridges and for all other purposes which will not interfere with the proper use of the plaintiff's proposed railroad.

At this point in the statement of facts two inquiries are presented: First, whether in acquiring the crossing over an ex

Questions presented.

isting railroad a condemning company may, by its petition, designate the manner of crossing and make compensation for such crossing only, or whether it must condemn the right to cross generally, subject to such restrictions and requirements in the use of the right it may acquire as the court of chancery may reasonably prescribe, making compensation predicated upon anticipated and possible regulation; and, second, whether a crossing which interferes with the present use, or intended use, of railroad lands for railroad purposes, is lawful.

Condemning crossing over another road.

The right of one railroad to cross another which is intersected by its route is so plainly essential to its construction for any considerable distance that it has become indisputably established by implication from mere authority to build a railroad between given points, (Morris & E. R. Co. v. Central R. Co., 31 N. J. Law, 205; National R. Co. v. Easton & A. R. Co., 36 N. J. Law, 182; New Jersey S. R. Co. v. Long Branch Commissioners, 39 N. J. Law, 28; State v. Drummond, 46 N. J. Law, 644, 20 Am. & Eng. R. Cas. 13,) and the general railroad law recognizes this right in railroads incorporated under it in terms so unambiguous as to be tantamount to express authority. (Revision, p. 934. § 36; State v. Hudson Tunnel Co., 38 N. J. Law, 548.) The right, however, is by implication from necessity, and its exercise must therefore be limited by the necessity of the condemning road. In the condemnation of a crossing over the lands of another railroad which are necessary for railroad purposes, all that is acquired is a right of way. After such condemnation, the place of crossing remains in the

Manner of

crosssing.

to be paid.

common use of both railroads for the exercise of their respective franchises. The manner of crossing is not to be destructive of the ability of the road crossed to fully, fairly, and freely exercise its franchises. National R. Co. v. Easton & A. R. Co., 36 N. J. Law, 181; New Jersey S. R. Co. v. Long Branch Commissioners, 39 N. J. Law, 28; Lehigh Valley R. Co. v. Dover & R. R. Co., 43 N. J. Law, 528, 14 Am. & Eng. R. Cas. 87; State v. Drummond, 46 N. J. Law, 644, 20 Am. & Eng. R. Cas. 13. It is not perceived that there can be tenable or sufficient objection to the designation of the manner of crossing in the petition in condemnation proceedings. It is within the power of one railroad to determine by the location of its route where it will cross another, (National Docks R. Co. v. Central R. Co., 33 N. J. Eq. 755,) and it is impossible to perceive a sufficient reason why it may not also determine, within lawful bounds, how it shall cross the other. When a crossing is. sought in a manner specified in its petition, the Compensation condemning company will make compensation for a crossing in that single manner, which, if it may thereafter be materially changed, may not be so changed without additional compensation for the damage which the change may occasion. The specification upon the record, of the exact method of using the right of way to be acquired, limits the compensation to the damages which may result from such use, and there can be no presumption, as in case of a general condemnation, (Lewis, Em. Dom. § 565; Van Schaick v. Delaware & R. Canal Co., 20 N. J. Law, 249: Ten Eyck v. Delaaware & R. Canal Co., 18 N. J. Law, 200; Delaware & R. Canal Co. v. Lee, 22 N. J. Law, 243; Trenton Water Power Co. v. Chambers, 13 N. J. Eq. 199,) that all damages, both present and prospective, including those occasioned by subsequent changes in the plan of crossing, have been considered and allowed. When the petition prescribes the manner of crossing, the effect upon the road crossed being thereby discernible, it is apparent that the legality of the proposed plan may be conveniently and properly questioned before the condemnation proceeds: not by the judge to whom the petition is presented, whose jurisdiction is limited by statute, but by the supreme court, under its general supervisory powers upon certiorari. State v. Hudson Tunnel Co., 38 N. J. Law, 548.

At this point the second question suggested-whether a crossing which interferes with the present use or intended use of railroad lands for railroad purposes is lawful-arises. As has been stated, in the acquisition of right to cross the abil. ity of the existing company to fully, fairly, and freely exercise

Legality of crossing interfering with use of railroad.

its franchises is not to be destroyed. It is not the policy of the law to cripple or destroy one highway for the purpose of erecting another. The purpose is to preserve, multiply, and maintain highways for the development of the country and the general public benefit; and this purpose is especially manifested in the general railroad law, where there exists a prohibition against the condemnation of lands used for railroad purposes, except for a mere crossing. But it does not follow that the precise existing use of the land crossed may not be interfered with. There can be no reason why such use should not yield, if the proposed interference with it is necessary, and of a character that will not destroy the reasonably fair enjoyment and exercise of the franchises of the company whose road is crossed. Ability to enjoy all its priv ileges and to perform all its duties in a proper and reasonable manner being secured to the latter company, it must, upon being duly compensated, submit to the necessary inconvenience and damage which the crossing may occasion. This view of the law has already found expression in this court, both in State v. Drummond, 46 N. J. Law, 644, 20 Am. & Eng. R. Cas. 13; and State v. Hudson Tunnel Co., 38 N. J. Law, 548. In recognizing the right of the condemning company to specify a lawful manner of crossing and to condemn a crossing in that manner, the right to condemn without such specification must not be lost sight of. Where such a company fails, in its petition, to define how it will cross, but seeks to condemn the privilege of crossing generally, the damages are to be assessed as in the case of the condemnation of lands of private individuals for railroad uses, not only for any manner of crossing at present lawful and necessary, but for lawful changes in that manner of crossing in the future. That which is acquired in such a condemnation, as in the case where the manner of crossing is specified in the petition, is a mere privilege or easement in lands, which are subject to a like privilege in favor of the road which is crossed. If in the use of this common easement, whether it be acquired under proceedings to condemn a crossing in a specified manner, or under proceedings to condemn a crossing generally, conflict should at any time arise between the companies, the interposition of equity may be invoked, according to the principles declared in Delaware, L. & W. R. Co. v. Erie R. Co., 12 N. J. Eq. 299, and approved in this court in National Docks R. Co. v. Central R. Co., 32 N. J. Eq. 767, to secure to each the enjoyment of its privilege in a lawful manner.

The proofs in the present case disclose that the projected crossing now considered cannot be effected without consid

show as to

projected

erable inconvenience and damage to the defendants. It will necessitate a change in the proposed car yard, which will not only be in itself, expensive, but will What proofs also render the future operation of the yard more difficult and costly to its managers and danger- crossing. ous to their employes by reason of heavy grade and of a cut through its center, unless an expensive change in the proposed grade of the defendants' elevated_tracks, now in course of construction through Jersey City, is made, and some safe covering for the plaintiff's cut is devised. The necessities of the defendants appear to forbid the abandonment of their yard or its transfer to another locality. But, however serious this inconvenience and damage may be, it does not appear that they will be either destructive to the ability of the defendants to fully and fairly exercise their franchises and perform their duties, or of such character that they may not be adequately compensated in damages. In addition, it appears to be reasonably necessary that the plaintiff's projected crossing shall be effected in the manner and at the place proposed, East of that place is a closely built city, which can be passed through only at an enormous cost; and on the west is a net work of the defendants' tracks and a rocky hill, which present almost insuperable obstacles in that direction. It is not suggested or perceived how a route more desirable or convenient to either the plaintiff or defendants, between the termini of the plaintiff's road could be selected. The projected crossing, then, is not unlawful. In addition to the crossing over the lands of the defendants, which appear to be necessary for their railroad purposes, the plaintiff proposes to acquire a portion of the unused meadow north of the defendants' new main line embankment "twenty-seven and a half feet wide on each side of its center line, except at or near the extreme northerly end thereof, where it requires thirty-seven and a half feet in width on the easterly side of said centre line." The plaintiff's petition contains a particular description of the land thus sought to be condemned, in which the northerly end of that land is described as follows: "Thence curving to the left on a radius of five hundred and forty-six and two-tenths (546 2-10) feet a distance of one hundred and sixteen (116) feet to a point opposite the southerly end of the westerly wall or abutment supporting the tracks of the Pennsylvania Railroad Company, known as the Harsimus Cove' or 'Freight' tracks; thence (S., 63° 50' E.) south, sixty-three degrees and fifty minutes east, a distance of twenty-two and a half (221) feet, to the corner of said last mentioned wall or abutment; thence (N., 26° 10' E.) north, twenty-six degrees and ten min

utes east, along the face of said wall or abutment a distance of eighteen and seventy-eight one hundredths (1878-100) feet to a point five (5) feet westerly from station (25-94 8-10) twenty-five plus ninety-four and eight-tenths feet, being the point of ending of said centre line; thence in a course about (S., 63° 50′ E.) south, sixty-three degrees and fifty minutes east, a distance of forty-two and five-tenths (42 5-10) feet, running through the end of said center line, as filed, to a point thirty-seven and a half feet easterly thereof; thence (S., 26° 10' W.) south, twenty-six degrees and ten minutes west, a distance of twenty-seven (27) feet, to a point in the division line between the lands of said Pennsylvania Railroad Company and the New Jersey Junction Railroad Company." It is objected that the land thus described is not within the plaintiff's located route, and that therefore it cannot be taken by condemnation. This view was adopted by the supreme court. The objection grows out of the uncertainty as to the location of the northerly terminus of the filed route. It is stated in the survey of that route to be a point on the line of the New Jersey Junction Railroad, as constructed, which is "the point of departure of branch railroad No. 7 of the last mentioned railroad company, as filed March 2, 1886, in the secretary of state's office." Now, that which is filed in the secretary of state's office exhibits center lines only, and the point of departure of branch No. 7, as there shown, is the point at which the centre line of the branch leaves the center of the main line. If the point thus indicated be the terminus intended, it is clear that the condemnation contemplates the taking of land outside of the filed route of considerable and valuable proportion. The courses given in the survey of the route, however, do not lead to this point, and, if those courses be run the distances given in the survey, without qualification, the terminus would be several feet northwest of the departure of the centre line of the branch from the centre of the main line of the Junction Railroad, upon a curving rail on the westerly side of the westerly track of that road; a point which is not indicated upon any survey of the New Jersey Junction Railroad which is filed in the office of the secretary of state. But the distances in the survey are qualified. It is expressly stated that they are to be taken "more or less:" and the survey provides that the terminus is to control the distances. The terminus is not a visible monument, but it is capable of ascertainment, and by the express provisions of the survey it is given the character of a visible monument. The engineer of the plaintiff in error explains that the words "more or less" were designed to make the distances, which were expressed in figures, sufficiently elastic