28 N.J. Eq. 450 | N.J. | 1877
The complainants’ bill was filed to foreclose a purchase money mortgage made by Wood to Cornelia Booraem, one of the complainants. The mortgage was dated January 24th, 1867, for $150,000, payable January 24th, 1877, with interest payable semi-annually; the whole principal to become due on default in the payment of the interest within thirty days after the same became due. By reason of the non-payment of interest falling due on the 24th of January, 1875, the whole principal money became due, and the complainants, on the 25th of November, 1875, filed a bill of foreclosure, praying a decree for the sale of the mortgaged premises for the payment of the balance of the unpaid principal
The Erie Railway Company became the owner of part of the mortgaged premises under a deed of conveyance by Wood and wife to the Hoboken Land and Improvement Company, dated March 10th, 1869.
The appellants are in possession of a part of the mortgaged premises on which they have erected an inclined plane and elevator, with an engine and machinery for transporting their cars up and down Bergen hill. The cost of these improvements was about $75,000. At the time of incurring this outlay the appellants had constructive notice of the complainants’ mortgage, from the fact that the same was then on record, but had not actual notice thereof.
After the foreclosure bill was filed the appellants proceeded to condemn the land whereon these improvements were made. The commissioners appointed in the condemnation proceedings appraised the land and damages at the sum of $10,047.87. They appraised the value of the land as it was when the appellants took possession — excluding the value of the improvements — and allowed interest from the time possession was taken.
The only question discussed on the argument was, whether the sum awarded by the commissioners or otherwise ascertained as the value of the land without the improvements, shall, for the purposes of this suit, be regarded as substituted for the land held by the appellants, or whether the complainants are entitled to have the land and the improvements on it sold for the payment of the mortgage. In this question the Erie Railway Company is interested as the owner of part of the mortgaged premises liable for the mortgaged debt, in ease of a failure to make the same out of such parts thereof as remained in the mortgagor, after conveyance to the said company.
The appellants were incorporated in 1859, under the name of the West Hoboken and Hoboken' Passenger Railway
• In the early part of 1873, after the complainant’s mortgage was made and recorded, the company and Wood, the then owner, made an agreement by parol for the exchange of the route so acquired for a new location on the line now in question, on which it was understood the company would construct an inclined plane or elevator to shorten its route and facilitate the ascent and descent of the hill. Under this arrangement the company, with the consent of Wood, took possession, and began the construction of the elevator in June, 1873, and completed it on the 21st of Uovember, 1873. During the progress of the work the company, on the 27th of March, 1874, obtained a supplement to its charter, authorizing a change of location, the construction of additional tracks, and of one or more elevators for the ascent and descent of the Bergen and Weehawken hills, providing for the filing of maps of routes thereafter to be adopted when the right of way could not be obtained by purchase, and empowering the company to acquire by condemnation the lands necessary for the execution of the powers granted by the act. P. L. 1874, p. 1264. In this act, the elevator and the tracks necessary to connect with it, then in the course of construction, were mentioned in such terms as clearly amounted to a legislative recognition of the power of the company to construct them. Under this act the company instituted the proceedings for condemnation, pending the suit for foreclosure.
This equitable doctrine is peculiarly applicable to condemnation under the right of eminent domain, where possession has been taken under an arrangement to purchase, which is defeated by some impediment not anticipated, and money has been expended in the construction of works on the faith of such arrangement being consummated.
The right of the state or its representatives to take property for public uses is unlimited in its scope. It extends to property of every kind and description, and is qualified only by the constitutional prescription that just compensation shall be made. Where a corporation to which such right has been delegated has not been admitted into possession, the value of the land taken and damages as of the date of the commissioners’ report, by force of which the title is divested, is the legal rule for ascertaining the damages. Metler v. E. & A. R. R. Co., 8 Vr. 222. But where the company
It has accordingly been held that where a railroad company is in possession lawfully, and constructs a track on the premises, in subsequent proceedings to condemn, the owner is not entitled to have the value of the structure included in his damages. California Pacific Railroad Co. v. Armstrong, 46
That the company did not institute proceedings for condemnation until this bill was filed, ought not to deprive it of the right to have the compensation to be’’made ascertained on correct principles. The strip taken is of inconsiderable
But the statutory proceeding to condemn having been taken, and Wood and the mortgagee being parties to it, they are concluded by the appraisement of the commissioners. If dissatisfied with the valuation made, their remedy was by appeal as provided for in the company’s charter. The report of the commissioners, or the verdict of the jury, is made plenary evidence of the right of the company to the land, and of the other parties to the sum awarded. If the rights of other parties were not involved, the commissioners’ valu
Ror have the appellants forfeited their right to have the valuation made in this .manner, by the failure to tender the sum awarded: Its obligation to pay anything under the
arrangement with "Wood is contingent upon the inability of the mortgagee to make the mortgage money out of the residue of the mortgaged premises, which may in equity be the primary fund for its payment. In case it be 'necessary to resort to the appellants’ land for any deficiency, the amount they are bound to contribute being ascertained, may be charged thereon, and in case the same be not paid, a decree may be made for the sale thereof to raise such sum.
The decree should be reversed, with costs in this court.
Decree unanimously reversed.