24 N.J. Eq. 249 | New York Court of Chancery | 1873
The complainant files his bill for relief against the act of' the defendants in constructing the embankment for their railroad across his farm in Warren county, in such manner as to-deprive him of a lane — a convenient farm way — over his-land. The farm contains about one hundred and fifty-nine-acres. Part of it lies on, and the rest near the Pohatcong. creek. It is about a mile in length. The complainant resides upon it. The buildings are at the upper end. The railway crosses the property about a quarter of a mile from the upper end of the farm. The proposed embankment will be for part of the way about one hundred and twenty feet in heighth. The company intend to leave no passage-way through it on the complainant’s land where his present farm-way is, but offer to make one for him in a part of the land where the embankment is of no very great height. This will be on the high ground, and will, he insists, be so steep as to*
The defendants are a corporation formed by the consolidation of two companies, The Bound Brook and Easton Railroad Company and The Perth Amboy and Bound Brook Railroad Company. The act authorizing the consolidation, provides that the consolidated company is in all respects to act and be governed by the laws then in force respecting The Bound Brook and Easton Railroad Company, so far as the same are applicable. Pamph. L., 1872, p. 1018.
The defendants, by their charter, are authorized to survey, lay out, and construct a railway from Phillipsburg to Perth Amboy, and to take by condemnation the requisite land for the purpose. The charter provides that the three commissioners, to be appointed thereunder in case of the failure of the company and land owner to agree, shall, having first been sworn, meet at the time and place appointed, and proceed to view and examine the land, at the same time taking into consideration all the benefits of the railway to the owner, and make a just and equitable estimate and appraisement of the value of the land and assessment of the damages to be paid by the company. Their report is to be in writing, under the hands and seals of the commissioners, or of any two of them, and is to be filed within ten days thereafter, together with the description of the land, and their appointment and oaths or affirmations, in the clerk’s office of the county in which the land is situate, to remain of record therein. The charter further provides that the report, or a copy thereof, certified by the clerk of the county, shall at all times be considered as plenary evidence of the right of the company to have, hold, use, occupy, possess, and enjoy the land, or of the owner
The defendants surveyed, laid out, and located their road through the complainant’s farm, dividing it into two parts, and in such a manner as to leave all the farm buildings, with only about eighteen acres of land, on the east or upper side of the railway; and the rest, about one hundred and thirty-seven acres, without buildings, on the other side thereof. All the farm buildings are on the northeasterly corner of the farm, in the valley, and near the creek, and near, also, as complainant alleges, to a valuable never-failing spring of water, the only water on the farm, except the creek, on which part of the farm lies. The greater part of the farm is high ground, lying more than one hundred and twenty feet above the bottom land.
The bill states, that the complainant has not, and has never had any other means of access to any part of his farm, except to one field, in the rear of which he has had access by a public highway; that to all other parts of the farm, he has had access by the lane or way above referred to, which, commencing near the public road, near the complainant’s house, runs by his barn, along the north face of the hill, in a westerly direction, gradually ascending the hill to a point where the surface of. the land admits of it, and then changing its course, southerly, passes through the farm, between a tier of fields on each side, to the most southerly enclosure of the farm. That, by that way alone, he has hauled all his fertilizers on his fields, and all his crops from them, and has passed to and fro in cultivating the land. That, through that lane, his cattle have passed at will to and from the creek,
In the summer of 1872, the parties having failed to agree as to the value of the land to be taken for the railroad, and the complainant’s damages by reason of the taking thereof, commissioners were appointed, under the charter, to make an estimate and appraisement. They awarded to the complainant $2132, for damages, in addition to the value of the land taken. The complainant, being very much dissatisfied with the award, was about to appeal from it, but was induced by the company to abandon his intention, and execute a release to them, by the payment, by them to him, of the further sum of $500, and their agreement to provide a suitable protection upon any bridge which they might erect over any lane or crossing of the complainant, over the land mentioned in the award, against the dropping of coals from their engines, and to build a certain side track, of which he was to have the use. The $500 were paid ; and the complainant, on or about October 28th, 1872, executed with the company, án agreement, by which he covenanted and agreed with them to accept and abide by the award or report, and thereby did accept the same; and that that agreement might be pleaded and set up as a defence, answer, or bar to any application, action, complaint, or proceeding, to set aside, remove, or call
It may be stated, that the charter of the company provide» that it shall be the duty of the company, when their railroad shall intersect any farm or lands of any individual, to provide and keep in repair suitable wagon-ways over or under the railroad.
It satisfactorily appears, that when the commissioners were upon the land for the purpose of making the estimate and appraisement of the value of the land taken by the company, and the complainant’s damages in that connection, it was stated to the commissioners, on behalf of the company, that it was the company’s intention to cross the low lands of the complainant, and the creek, not by an “ earth fill,” but by an iron bridge six hundred feet in length, the ends to rest on stone abutments, and the body of the bridge to be supported by iron columns resting on stone bases; and that the bridge,, instead of being a damage to the complainant, would rather be an ornament, and would be no serious obstruction to the view down the valley, and would not interfere with his use of his land, nor seriously interfere with or disarrange more than two of his fields, leaving the rest of the farm in the same condition in which it then was. And the place, a point about forty feet southerly from the lane, where the southerly abutment of the bridge was to be located, was then pointed out, and on the complainant’s suggesting that the abutment, being so near the lane, the “ fill ” would fall into the lane, it was replied, on behalf of the company, that they
The complainant seeks relief in the premises. His bill prays that the defendants may be perpetually enjoined from setting up, pleading, proving, or in any way using the award or the agreement as a bar, release, qualification, limitation or abandonment of the complainant’s right to have the lane or farm-road, at the place where it is crossed by the railroad, free and unobstructed, and properly preserved and protected for use in connection with and as a means of communication with and between the different parts of liis farm ; and that it may be decreed that neither the award or agreement is an obstacle, bar, or impediment to the complainant, his heirs or assigns, in possession of his farm, to being protected in the absolute possession, and free and safe use and enjoyment at all times, forever hereafter, of the lane in its present location; and that the company may be restrained from obstructing or unnecessarily interfering with the lane or the complainant’s use of it.
The representations made in behalf of the company, at the time of the meeting of the commissioners on the land, were of such a character as very materially to influence the minds of the commissioners, in fixing the damages to be awarded to
That the company’s plan still was to bridge the valley when the agreement of settlement was made, is evident from the covenant on their part contained in that agreement to provide a suitable protection upon any bridge which they might erect over any lane or crossing of the complainant over the land mentioned in the award, against the drop]fing of coals from the engines of the company. They had not then changed their intention as to the mode of carrying their track over the valley. Having subsequently done so, and having substituted for their original method one far more injurious to the complainant, especially in that it will deprive him of convenient communication between the upper and lower parts of his farm, the question is, what is the effect of this change upon the parties ? The complainant’s counsel insist that, from these representations, an implied contract on the part of the company' has arisen to cross the valley by means of the bridge, which they ought to be decreed specifically to perforin, and that relief was asked for on the argument. But the bill is not filed for specific performance of such alleged contract, nor any contract. It prays no such relief, nor is such relief fairly within its scope. Besides, in my judgment, no contract is to be implied from these representations. But I am of opinion that, inasmuch as by means of them no damages were awarded to the complainant in respect of his being deprived of this means of convenient communication, the company should not be permitted to deprive him of that communication without compensating him therefor.
The company insist that the complainant had no confidence in the representations, but insisted before the commissioners that, notwithstanding their statements, the company did intend to cross the valley by means of an embankment, and they contend that he cannot, therefore, claim to havé been injured by statements or representations, which he not only did not believe, but in which he expressly declared his want of
But it is said, that when he made the settlement he was acting for himself, and had control over the whole subject, and if his want of confidence in the representations existed then, it will debar him from any relief in the premises. It appears that he had great reason to believe in the representations at that time, for the work on the abutment had been commenced, and was in progress; and, besides, the covenant on the part of the company above referred to, shows that the representations were then substantially repeated to him. It is not reasonable to suppose that, under such circumstances, he could have failed to believe the truth, or that he could have had doubts as to the intentions of. the company, so palpably evidenced as they were by the work alluded to, and their covenant contained in the agreement of settlement, to protect him and his property against injury by fire falling from their engines through the bridge.
The more important question is, as to the extent of the relief and mode of administering it. The complainant insists, that the company should be absolutely enjoined from filling up the lane, and should be left to acquire the right to fill it, by proceedings under the charter, as for condemnation, or as best they may. He insists that they have never acquired the right to close up the lane. By the charter, it is enacted that the report of the commissioners, or a duly certified copy thereof shall, at all times, be considered as plenary evidence of the company’s right to have, hold, use, occupy, possess, and enjoy the lands. By the proceedings of condemnation, under the charter, the company acquired title to the land for their purposes, and the presumption of law is, that damages were awarded for all injuries to the means of communication between the different parts of the farm.
The order to show cause will, therefore, be made absolute,, unless the defendants shall make the complainant such increased compensation in the premises as this court shall deem reasonable and just. The amount of that compensation will be estimated by the commissioners, by whom the value of the land and damages were estimated and appraised, and reported to this court for approval.