First National Bank v. West River Railroad

49 Vt. 167 | Vt. | 1876

The opinion of the court was delivered by

Ross, J.

The question now before the court in this case is relative to the respective rights of the defendants to eleven hundred dollars, deposited with the orator to the credit of Brown by the railroad company. The deposit was made as a. condition precedent — made so by the statute — to the right of the railroad company to take his lands for the construction and maintenance of its railroad. If by the proceedings under which the money was deposited, the railroad company acquired the right to hold and use the lands condemned, belonging to defendant Brown, for.the construction and maintenance of its road, he thereby acquired the right to the money. The right of the railroad company to take and hold the lands for the purpose of constructing and maintaining its railroad, and his right to the money, are correlative and coincident, and vest simultaneously in the respective parties. No voluntary abandonment of the right to take and use the lands, when once fully acquired, will divest him of the right to the money which has once vested in him. This we think is fully established by Stacey v. Vt. Central R. R. Co. 27 Vt. 39 ; Baltimore R. R. Co. v. Nesbitt, 10 How. 395 ; Hudson River R. R. Co. v. Outwater, 3 Sandf. 689 ; Wagner v. Cleveland & Toledo R. R. Co. 22 Ohio, 563 ; Hampton v. Coffin, 4 N. H. 517 ; Hawkins v. Rochester, 1 Wend. 53 ; Harrington v. Berkshire, 22 Pick. 267 ; Henry v. Dubuque &c. R. R Co. 10 Iowa, 540.

The proceedings taken by the railroad company with the view to condemn the land of the defendant Brown, are conceded to have been regular and to have been prosecuted to completion ; so that, if ,the railroad company had the right to institute and carry through those proceedings, it has thereby acquired a good title to the lands, and he the right to the money. If, however, the railroad company, by the proceedings and deposit of the money, acquired no right to construct and maintain its .road over the lands entered upon, the defendant Brown acquired no right to the money deposited, as these rights co-exist, if either exists. Hence, the real question is, whether, on the facts in the case, the railroad company obtained the right to construct and maintain its road over and across the lands taken, belonging to defendant Brown.

It is conceded, that soon after the deposit of the money and the entry of the railroad Company upon the land, but before the demand of the money by Brown, the railroad company was enjoined from constructing its road on the route leading across the lands of defendant Brown, on a bill in chancery brought by other parties, alleging that the railroad company had no right to construct its road over the route where it had located its line, and that the railroad company have wholly abandoned the undertaking. The bill in chancery is still pending, but no attempt has been made to have the injunctions dissolved, further than the filing of a motion for that purpose. It is not directly admitted that the railroad company had no right to build and maintain its road on the lands of defendant Brown; neither has that right been adjudicated in the suit in chancery, further than the granting of the temporary injunctions. To entitle the orators in that suit, to the temporary injunction, the bill must have made a prima facie case against the right of the railroad company to build its road on that line. It is to be presumed that the temporary injunction was legally and properly granted. It is also admitted that the company have permanently abandoned the work on, and the location of, their road over the lands of defendant Brown, and have no intention or purpose of ever resuming the same. This is tantamount to a confession of the bill on which the temporary injunction was granted. The prima facie case made by the bill against the right of the railroad company to build its road on that location, thus yielded to and confessed by the company, is equivalent to the establishment of the fact that the railroad company had no right under its charter to locate and build its road over the lands of defendant Brown; not from an adjudication in the injunction proceedings, but as the result of the facts conceded to exist in the case. It matters not how this fact is established. Its force is equally cogent and controlling when it results from other conceded facts, as when admitted or established by a solemn adjudication. With this fact established, the proceedings of the railroad company to condemn the land of defendant Brown, even to the depositing of the money, although in the manner and under the forms prescribed by statute, were without the sanction of law, and void. The railroad company through them, acquired no right to his land, and he, no right to the money deposited by it in payment for the land. As, in the eye of the law, no land was condemned, no money in payment for the land can be exacted. The entry upon the land was a trespass, and as such the defendant Brown is, under the stipulation of the parties, entitled to full compensation for the damages occasioned by such wrongful entry, out of the money in the hands of the orator.

The result is, that the pro forma decree of the court of chancery for defendant Brown for the entire sum deposited, is reversed, and the cause is remanded, to be proceeded with in the ascertainment and allowance of a decree for damages, agreeably to the stipulation of the parties. The orator is to be allowed its taxable costs out of the funds in its hands. No costs to be allowed to either defendant, except the court and clerk and master’s fees are to be deducted from the fund.