72 N.J. Eq. 568 | New York Court of Chancery | 1907
The construction and operation by the defendant of its railroad across the strip of land in question is an interference to some extent with the right of way. over the strip, to which the •complainant is entitled under its deeds. This results necessarily from the fact that by reason of such operation the complainant is at all times required to observe, at the place of •crossing, increased care and attention to avoid danger, and is at some time during every day regularly deprived for a time of the use of the right of way at this crossing.
The railroad, as appears by the answer, is constructed and operated under the authority of defendant’s charter and the provisions of the General Railroad law authorizing the construction of railroads and their use as public highways with the right ■of taking tolls. The construction therefore is made under express statutory authority to construct and operate for public use that which would otherwise be a nuisance to the complainant. The strip of land in question has been purchased by the defendant railroad company, which owns the fee thereof, subject to the complainant’s right of way, but the ordinary use of the land by the owner of the fee does not include the erection and operation on it of a steam railroad for the purpose of reaching lands of other parties in the exercise of a public franchise of operating a railroad and taking tolls.. The company sets up in its answer that the road runs from its Newark and New York branch to the factories on the meadows, and it was proven in the case that it is operated for that purpose. This makes the use of the railroad at the strip of land in question, the operation of a portion-of its system which it holds under its charter and the General Railroad acts, and subject to the conditions provided by those acts, as to the interference with private rights in the lands on which the road is constructed and operated. One of these conditions is that private property cannot be taken for
The claim on the part of the defendant, that this construction and operation of a railroad is an exercise of the reserved powers of the owner of the fee to use his own land in such a way as not to interfere with the right of way, is not well founded, either in fact or in law, and does not, in my judgment, reach the case, which is altogether one of interference -with complainant’s right of way under powers given to defendant by its charter and the railroad acts. The situation and rights of the parties, both as to fact and law, are controlled by those acts, and not by the rules regulating the ordinary use by the owner as of common right of land subject to a private right of way.
I conclude, therefore, that so far as the rights of the complainant are concerned, I must declare that its right has been interfered with, and without the payment or tender of compensation therefor, provided for by the statute. I do not go into the extent of the interference, because, in the view I take of the case, that question is not at present material. As complainant did not consent to this erection or operation of the railroad across the strip of land in question, but did everything in its power to prevent it, it is a case where, I think, it is strictly entitled to the protection of its constitutional and statutory right to compensation, by the exercise of the power of this court to enjoin
