1 Md. Ch. 107 | New York Court of Chancery | 1847
Nothing can be clearer, than that private properly cannot be taken for public use, without making just compensation to the owner. The right of eminent domain gives to legislative authority the control of private property, for public uses, but this power is subject to the condition, that a reasonable and just compensation shall be made to the owner, and any attempt to exert the power, without complying with the condition, would not only be at war with the great principles of -natural justice, which lie at the foundation of the social compact, but would be in direct conflict with the constitution of the United States. It follows, therefore, irresistibly, that as the complainant has not received compensation for that portion of his property, which has, through the medium of this company, been taken from him for public use, that he is now entitled to compensation ; and this compensation is to be paid him, not in the bonds of the company, issued - under the act of 1841, but in money.
The bill takes the ground, and the argument of the complainant’s solicitor urged the same view of the subject, that the land condemned by the inquisition of August, 1838, was not necessary for the use of the road, and that, therefore, as to that portion of the premises, the company should be ordered by the decree of this court to deliver the possession to the complainant. I cannot bring myself to think that such a decree would be at all justifiable. The 15th section of the act of 1826, chapter 123, which so far as the mode of proceeding in the
All this was done in the present case. The property condemned was described in the inquisition, which was returned to the clerk of the proper county court, was by him filed, and no cause to the contrary having been shown, the inquisition was duly confirmed by the court, and recorded by the clerk, as directed by the statute. These proceedings took place in year 1838, from which time to the filing of this bill, in 1846, they have remained without objection from any quarter. It seems to me, impossible to contend successfully, that under these circumstances, and in this incidental collateral proceeding, the propriety of the condemnation, and use of this property, can be drawn in question.
A cause of forfeiture of a charter of incorporation, cannot certainly be taken advantage of collaterally, or incidentally. It must be enforced by scire facias, or quo warranto, at the instance of the government, and until the government so interferes the franchise continues.
Canal Company vs. Rail Road Company, 4 G. & J., 1, and; as the charter of the company cannot be forfeited, unless proceedings for that purpose be instituted by the government, I am at a loss to conceive how their property can be taken from-them as forfeited, so long as the charter remains in existence. By the condemnation of the property in question, and the confirmation of that condemnation by the county court, it has been ascertained by the proper authority that such property was required for the purposes of the company. And yet whilst that judgment stands, and the corporate franchises of the company,
If by applying this property to a purpose not warranted by the charter, the company have exposed themselves to the penalty of a forfeiture, and to all the consequences which would ensue from such forfeiture, the complainant is not the party, nor is this the proceeding by which the question is to be tried.
But as already observed, the complainant is clearly entitled to be paid the compensation awarded him by the jury, and I cannot think that his right to such payment can be in any way affected by the act of 1841, ch. 168, before referred to.
But the complainant, besides praying for the payment of the sums awarded him by the jury, as damages for the comdemnation of this land, asks that his equitable lien as vendor, may be enforced, and that the land may be sold for the satisfaction thereof. How far the complainant may be entitled to the lien of a vendor to enforce payment of the purchase money, is a question not free from difficulty. He did not agree to sell the land, and the proceeding adopted by the company under the 15th section of the act of 1826, ch. 123, became necessary in consequence of the failure of the parties to agree. By that proceeding the land was taken from him without his consent, and of course there was no contract to sell. It was a condemnation or dedication of so much of the property of an individual for the public use, taken in virtue of the right of eminent domain; but upon the condition that a just compensation should be made to the owner. Whether, under these circumstances, the equitable lien of the vendor exists, or not, is a question of no easy solution ; but looking to the language of the act, and indeed independently of any such language, it must be conceded, that the property cannot be taken from the complainant until the valuation placed upon it by the jury is
The complainant is not suing at law for the recovery of the land, but in equity for the payment of the money, upon the ground, that the payment cannot be enforced at law, in consequence of the insolvency of the company. He has forborne to institute these proceedings until the road is finished, and valuable and expensive improvements are made upon the property ; and I, therefore, am of opinion; that in equity, he is entitled to no more than a decree for a payment of the sums awarded him by the jury, with interest from the period of the confirmation of the inquisitions by the court. A decree will be signed for that purpose, payable out of the revenues of the company, within some reasonable time, and in default thereof, the revenues will be sequestered until the claim is paid. The complainant is, also, I think, entitled to his costs.
It may be further observed in reference to the prayer of the bill, that the complainant may be restored to a possession of a part of the land condemned, that if any such right exists; under the circumstances of this case, his remedy is by action of ejectment, and not by bill in equity.
