31 N.J. Eq. 31 | New York Court of Chancery | 1879
The Chancellor.
The sole question presented for adjudication on the hearing was, whether, as to the part of the mortgaged premises on which the railroad of the Yew York and Fort Lee Railroad Company is built, the receiver of the Erie Railway
By an act passed in 1864 (P. L. 1864, P- 4&0), the railroad company was empowered to alter and relocate the turnpike road as they might deem reasonable, expedient and right, but with this limitation, that the location should not be established more than ten feet eastwardly or westwardly at any one point of the then location of the turnpike road, without the consent, in writing, of the owners of the lands over which the new location might be proposed to be made, and that the combined width of the railroad and turnpike
It is manifest that the railroad company, under their charter, have no right to the present location of their road through the mortgaged premises. It is urged, it should be remarked, that the act of 1861 gave them the right to occupy with their road any land which the turnpike company wTere “entitled to occupy.” But the latter company had, previously to that time, located their turnpike on what is now the mortgaged premises, and the act of 1861 prohibited them from laying branches over those premises. They had, then, in 1861, no right to occupy any more or any other part of the mortgaged premises than that on which the turnpike road was located. The railroad company have never had any right to condemn the land on which their road is laid over the mortgaged premises.
It is insisted, however, that an act which was passed in 1871 (P. L. 1871, p. 91fS), by which the contract for building the railroad for which the before-mentioned lien was created, was validated and confirmed, and the money due under it declared to be a first lien on the road “ as constructed,” is a legislative recognition of the power of the railroad company to locate their road there, notwithstanding the prohibition and limitation before mentioned. But that act, manifestly, was intended to do no more than to authenticate the agreement and recognize the power of the contracting parties, the New York and Fort Lee Railroad Company and the Erie Railway Company, to make it and
There is no evidence of location by mistake. No mistake is set up in the answer or alleged. It is evident that the company understood that they were not exercising their charter power of location in locating the road over the mortgaged premises, for in the agreement under which the road was built they reserve the right to change the location.
Nor is the right to the equity claimed established by the mere fact that the mortgagee knew that the road was being constructed over the mortgaged premises. There is no paramount power of condemnation here as there was in the case of North Hudson County R. R. Co. v. Booraem, 1 Stew. 450, no power (the right of eminent domain) to take the property, superior to the rights of both mortgagor and mortgagee. The power of eminent domain confers the right to take the property on making just compensation, and that compensation, in such case, is, so far as the value of the land is concerned, to be estimated as of the time when possession was taken, and, therefore, cannot include the value of improvements subsequently put upon the property by the party entering under the right. But where, as in this case, the entry was not under that right, the right to take the property on compensation does not exist, and the party entering and improving does both subject to the right of the mortgagee whose mortgage was on the property, to sell, for the payment of his debt, the land and the permanent improvements incorporated with it. In the one case, the maxim “ Quicquid plantatur solo, solo cedit ” is not applicable; in the other, it is.