Post v. Rutland Railroad

| Vt. | Feb 6, 1908

Watson, J.

The statute, giving railroad corporations the power to take real estate for a right of way by eminent domain, provides that before such a corporation commences proceedings for that purpose “it shall cause the location of its road signed by a majority of the directors, defining the courses, distances and boundaries of the same in each town through which it passes, to be recorded in the respective town clerks’ offices in said towns; * * y. S. 3809. When the corporation has not acquired such real estate by gift or purchase, and if the parties do not agree as to the price thereof, two judges of the Supreme Court, on application by the corporation, shall appoint commissioners to determine the damages which the owners of such lands have sustained by the occupation of the same for the purpose named. V. S. 3814. And at least ten days before the appraisal, the corporation shall deliver to the owner, or deposit in the clerk’s office in the town in which the same is situated, a plan or description in writing of the land so taken, y. S. 3816. These provisions and some others apply to the defendant in locating and constructing branches of its road to connect with marble quarries in the town of Brandon. Laws of 1868, No. 141.

The master finds that the condemnation proceedings taking the orators’ land in question were in -accordance with the requirements and provisions of the statute, unless the legal effect thereof is changed or modified by the facts that, “The premises in question were described in the certificate of location filed in the town clerk’s office and signed by the president and a majority of the directors as being the land of E. S. Marsh instead oi land of the orators, and in the description thereof the place of beginning the survey was described as being thirty-six feet southeasterly from the southwesterly corner of F. R. Button’s land and in the division line between lands of the Rutland Railroad Company and E. S. Marsh, when such point or place of beginning was thirty-six feet southeasterly from the southeasterly corner of said Button’s land, but such error would not deceive or mislead a person examining the premises, as to the actual or intended location thereof.” The sufficiency of the description in the recorded location is challenged.

The survey and location of the road constituted the taking of the land over which it was laid,- — Troy & Boston R. R. Co. v. Potter, 42 Vt. 265" court="Vt." date_filed="1869-11-15" href="https://app.midpage.ai/document/troy-v-potter-6578894?utm_source=webapp" opinion_id="6578894">42 Vt. 265, — and in appraising the damages to which the owners of the land so taken were entitled, the commissioners were confined to the land within the limits of the road thus located and laid out. Beyond that they had no jurisdiction. It devolves upon the defendant to show that the condemnation under which it claims to hold the land.of its right of way in question was strictly in accordance'with the provisions of law. In addition to misdescription as to ownership, the report of the master shows only the point of beginning in the survey of the location, and that that is radically inaccurate when applied to the description of the land on which the road was built. True the master finds that this “error would not deceive or mislead a person examining the premises, as to the actual or intended location.” But this finding cannot aid the defendant. The location of the road when recorded was the only written permanent record evidence of the land taken, and it is conclusive upon the corporation and the land owner. The location determined upon must be ascertained from'the survey of record with such reference to any plan or map filed therewith and constituting a part of the description, as may be proper. The written location may be explained, but it cannot be varied or modified. Nor is extrinsic evidence admissible to show that the land in controversy was intended to be taken, or was in fact taken.

Other questions are raised upon the record, including the constitutionality of the statute under which the condemnation proceedings were had, but they will not be decided until the facts reported are such as to enable the Court legitimately to determine whether the land in controversy is within the limits of the recorded location. If it is not, the question of the validity of the statute is not involved.

Decree reversed pro forma and cause remanded with directions that further proceedings be had before the master in accordance with the views here expressed.