72 Vt. 404 | Vt. | 1900
The-plaintiff in this case brought an action of ejectment against the defendants to recover the seism and possession of a strip of land along the margin and a part of their road-bed in the City of Rutland. The defendants had erected buildings upon the land and for many years occupied them as store houses for the reception, storage and delivery of freight sent by and to them upon the plaintiff’s railroad.
The plaintiff recovered judgment in the Supreme Court, (see 71 Yt. 84,) and at that term the defendants filed a declaration for betterments, and the cause was remanded to the County Court for trial. Upon trial in the court below it appeared that the demanded premises were a part of the plaintiff’s right of
This is undoubtedly true, so far as the levy of an execution upon the land is concerned. It cannot be levied upon for the reason alleged, and for the further reason, that the statute referred to prohibits it.
It is claimed that no recovery can be had for betterments imposed on a railroad company’s right of way which was acquired by the exercise of its power of eminent domain and not otherwise;
The plaintiff insists that the defendants could not make improvements on a railroad’s right of way in this State, supposing their title to be good in fee for the reason that a railroad is of such a permanent character that whoever purchases land adjacent to its right of way after its construction must take notice of the rights of the company as shown by the filed location, construction, and operation of its road. That is, they are chargeable with constructive notice*. But under our statute betterments made upon railroad lands stand no differently from those made upon the lands of private individuals. The question is one of fact whether when the defendants purchased the land, they supposed their title in fee was good. It is held in this State that constructive notice which the law implies from the registry of a deed is not sufficient to preclude one from recovering for betterments, who in fact purchased in good faith and with the supposition that he was obtaining a perfect title in fee. Whitney v. Richardson, 31 Vt. 300. It was held in Kendall v. Tracy, 64 Vt. 522, that defendants can not recover for betterments when they had actual knowledge of a mortgage resting upon the land, and it is said that the right of a party to betterments depends upon his bona fide supposition that he bought the land with title in fee. Neither can it be said as against this statute that buildings and structures erected upon a
The statute provides for a recovery for betterments and for a judgment in favor of the party making them for the damages sustained by him. The rule of damages is prescribed by the statute, viz., “ the increase in the value of such land in consequence of betterments so made.” Under its provisions a judgment may be obtained against the plaintiff in ejectment. Upon such judgment an execution can issue only against the land so recovered in the action.. Having recovered a judgment for betterments, the defendant in the action of ejectment is confronted with this dilemma. He can have an execution only against the land recovered in the action, and the land being used by the railroad as its right of way, cannot be levied upon to satisfy the execution. The law gives to the party a judgment for the damages which he has suffered, but will not permit him to enforce the judgment in the ordinary way by execution.
When the law gives a person a legal right, without a full, ample, and complete remedy at law, equity has jurisdiction to-afford the party relief, and it may”do so in this case if the party is so advised.
It is analagous in principle to the ruling of the court in cases when a land-owner permits a railroad company to enter upon his land and construct its road, or stands by and sees the company do-it, and makes no objection thereto, and no damages are paid him for such taking of his land; while the land-owner cannot maintain trespass nor ejectment because the land was entered upon by his-license, nor assumpsit, perhaps, after two years have elapsed, or the corporation is insolvent, equity grants the party relief by perpetually enjoining the road from occupying the land until the damages are paid. In analogy with this principle, in this case the plaintiff can be perpetually enjoined from using the premises until it pays the defendants the judgment, if any is obtained, for their betterments. There is nothing inconsistent in this. The land which is the subject of controversy cannot be taken, and
The pro forma judgment is reversed and cause remanded.
