48 N.Y.S. 901 | N.Y. App. Div. | 1897
The premises, the subject of condemnation in this proceeding, ' are the right of way occupied by appellant’s railroad across the farm of one William H. Tanner. The predecessor of the appellant, also a railroad corporation, entered into possession of the premises under a deed from said Tanner and constructed its railroad thereon. At the time of the conveyance by Tanner, his farm was subject to a mortgage. No release of this mortgage was obtained or any proceedings instituted, to condemn the right of the mortgagee. In 1895 an action was brought to foreclose this mortgage, to which the appellant was made a party. The appellant answered in that action, claiming that the remainder of the farm should be first sold in satisfaction of the mortgage debt. Under the decree in foreclosure the two plots, i. <?., the remainder of the farm and the right of way of the railway company, were sold to different purchasers. The'defend
The sole question presented on this appeal is the right of the defendant to compensation for the improvements placed by the appellant on the land in constructing its roadway and in position there at the time of the sale under foreclosure. It is not necessary for us to determine, nor does the question arise, whether in the award of compensation the premises were to be valued as part of a continuous railroad, as the evidence in this case is sufficient to support the award, if the defendant acquired title to the fixtures and material, in whatever view their value may be considered. The proposition on which the learned counsel for the appellant assails the report of the commissioners is that the defendant, by his purchase at the foreclosure sale, acquired title to -nothing but the land or space, and no right to the improvements made thereon by the railroad- company. That, ordinarily, under -the general rule between mortgagor and mortgagee, the title to the improvements would pass with the title to the land is not denied. But it is contended that a different rule applies to the case of improvements made by a railroad company where its entry upon the land was under the consent of the owner of the fee. And in support of this claim several authorities are cited. The only one in this State is Dows v. Congdon (16 How. Pr. 571). In that case the right of way of the railroad
This review of the cases shows that in none of them- did the question here involved arise nor was it decided. It may be assumed as the law that where a railroad company lawfully enters into possession of premises and thereafter institutes condemnation proceedings to cure a defective title or extinguish the lien of a mortgage or other incumbrances, the measure of compensation is not enhanced by the improvements placed by the railroad company on the land, although the proposition is not authoritatively settled in this State. It may be doubted whether in this State, against his will, the compensation to be made to a mortgagee can be ascertained except by a jury or commissioners appointed by the court. But, however this may be, and conceding to its full extent the doctrine of the cases cited, the question in this case is not what is the rule of compensation to a mortgagee, but what passes by a sale under a decree of foreclosure. The appellant might at any time before the sale, or at least before the judgment, have, by proper proceedings,.condemned the interest of the mortgagee and thereupon no judgment could have gone against it for the sale of the property. In such a proceeding the rule of compensation would have been not only the value of the property taken, but the injury done the remaining property by the severance. This was the principle on which the commissioners made their first report in this proceeding. • But the appellant was not satisfied with that rule, and on its application the report was set aside. It is, therefore, entitled to little sympathy if
The present case, however, is not a hard one, for the appellant might have had the favorable rule adopted in many of the States when condemnation is instituted prior to the foreclosure sale, but it expressly repudiated the rule.
The principle on which the commissioners proceeded in making their award was correct, and the order and award should be affirmed, with costs.
All concurred.
Order and award affirmed, with costs.