14 Wend. 51 | N.Y. Sup. Ct. | 1835
By the Court,
The plea demurred to sets out substantially the enacting part of the seventh section of the act by which the defendants were incorporated, and the averments which it contains were undoubtedly sufficient to bring them within its provisions, and to justify the trespasses complained of, unless the enacting clause is qualified and restrained by the proviso contained in the same section. It was obviously the intention of the legislature to authorize the corporation to enter upon and take possession of such land as they should think necessary for the route and construction of their road, without requiring as a condition precedent that the same should be appraised and paid for in the manner prescribed in the act. No survey or examination could be made without a previous entry. An examination of the soil by ploughing or digging might be indispensable, in order to determine the practicability of a particular location, or the expediency of adopting one route in preference to another. The quantity of land necessary for the construction of the road, and the damages sustained by the owner in consequence of the taking or occupation thereof by the company, could scarcely in any instance be accurately determined until the road was completed or considerably advanced in its construction. After a particular route was surveyed, it might become necessary to abandon it, in consequence of difficulties from the nature of the soil, or unforeseen obstructions, which were developed during the progress of the work. Many considerations of this description would render it highly expedient that it should not be made imperative upon the corporation to attempt to purchase the land required, from the owners, or to have their damages assessed faster than the road was substantially completed. The act accordingly authorizes them to cause surveys and examinations to be made, and to enter upon and take possession of and use all such lands within the prescribed limits as may be indispensable for the construction of the road, without any
Nor is the right thus given to this corporation, to enter upon and take possession of the land necessary for the construction of their road, before they are required to pay for it and obtain the absolute title, a new and peculiar feature in this act. Under the highway act of 1813, 2 R. L. 275, § 16, the commissioners of highways are authorized to lay out roads through improved and cultivated land, without the consent of the owners or occupants thereof, upon the application of twelve respectable freeholders ; and the owners are to procure their damages to be assessed in one of several ways, pointed out in the act. The supervisors are then to cause them to be raised and collected in the town, in the same manner as the other town charges, and to pay them to the commissioners, who are to pay i over to the owner. This process of collecting and pay-the damages must necessarily occupy some considera
The general turnpike act of 1813, 1 R. L. 231, § 3, is an exception to the general rule, clearly and distinctly marked by the very terms of the act. It contains an express provision that nothing in the act contained shall be construed to authorize the president and directors of any company to enter upon any land for the purpose of making their road, until they shall have paid the damages of the owners of the land, according to the provisions of the act.
It has never been deemed necessary that the compensation which the constitution requires should be made for private property, when taken for public use, should be actually paid before entering upon or taking possession of the property. If legal provision for compensation is made, the spirit of the constitution is complied with, and the property which is required for public use may lawfully be entered upon and taken. I am not aware that this principle has ever been questioned. It has already been shown that it has been sanctioned by the legislature in the highway and canal acts. It is explicitly admitted by Judge Spencer and Chancellor Kent, in Bradshaw v. Rogers, 20 Johns. R. 104, 744; and again, by Chancellor Kent, in Jerome v. Ross, 7 Johns. Ch. R. 343, 344; and by this court, in Wheelock v. Pratt, 4 Wendell, 650. And the opinion is strongly intimated in those cases, that a law would not be unconstitutional, which authorized private property to be taken for public use, and entirely omitted to provide the mode of making compensation; and that the officers of government, or other individuals, who should take possession of property under such circumstances, would not be trespassers; and that the owner would have a just claim for compensation, which it
The defendants, then, were authorized, by their act of incorporation, to enter upon, take possession of and use all such lands, within certain prescribed limits, as were indispensable, for the construction and maintenance of their road. Their plea contains all the averments necessary to bring them within the provisions of the act, and to justify the entry and trespasses complained of. The assessment and payment of the plaintiff’s damages for the taking of his land, was a condition subsequent to their right of entry, for the purpose not only of surveying, but of making and constructing their road, and which it was not necessary for them to notice in their plea. 1 Chilly's PI. 228, 229. If, notwithstanding their original entry was lawful, the defendants have been guilty of such delay in taking the measures prescribed by the act, to obtain a title to the land, and to ascertain and pay the plaintiff’s damages, as to deprive them of the benefit of such entry, and render them trespassers ab initio, it was incumbent upon the plaintiff to have replied the facts necessary to present that question. Whether an unreasonable delay in paying the plaintiff’s damages would render the defendants trespassers ab initio, it is not necessary now to consider; that question is not presented by the record. That the plaintiff would have an ample remedy, in such a case, in some form of action, there can be no question. Six Carpenters’ case, 8 Coke, 145. 2 Wils. 313. 11 East, 395. 2Ld. Raym. 1424. 5 Taunt. 198. Croke’s Ch. 446. 2 Roll. Abr. 562. 5 Barn. Cres. 485. 11 Com. Law R. 279.
1 entertain no doubt of the entire constitutionality of that provision of the act in question, which authorizes the defendants to take the land which may be necessary for the construction and maintenance of their road, against the will and without the consent of the owners. Rail roads, though made by private corporations, when designed for travelling and transportation, are great public improvements. They can be made profitable to the proprietors only by affording the most
Judgment for defendant on demurrer, with leave to plaintiff to reply.