Argued at the general term, 1867.
The opinion of the court was delivered by
Pierpoint, C. J.
This is an action of trespass on the freehold, brought to recover the damage sustained by the plaintiffs in consequence of the defendant’s entering upon the line of the Southern *271Vermont Railroad, of which the plaintiffs are the lessees, where said road crosses the farm of the. defendant, and cutting and taking away the grass growing upon the said road, and within the lines and fences thereof; the plaintiffs being at the time in possession, and using the same for the purposes for which it was constructed : the object of the suit being to test the right of the defendant so to do.
The defendant claims the right to enter upon the premises in question, and to cut and take off the herbage, on the ground that after the said road had been surveyed, and the lines thereof staked out and established across the defendant’s farm, in settling the question of land damages between himself and the Company, it was agreed and understood that he was to have such right; and that he understood at the time that this right was taken into consideration in fixing the amount of such damages. And in aid of this claim, the counsel of the defendant insists that said corporation, in taking the land under their charter, did not cause a certificate of the survey of said road to be recorded in the town clerk’s office in the town where the land lies, as required by said charter, and for that reason they got no title or right in the land in question, except such as they acquired by virtue of the contract between them and himself.
It appears from the bill of exceptions, that it was agreed by the parties upon the trial that a copy of the survey of the route or line of the Southern Vermont Railroad Company, in the town of Pownal, as recorded in the office of the town clerk of that town, should be treated as evidence introduced by the plaintiffs, subject to all legal objections, and the same referred to. "No question appears to have been made in the county court in respect to the survey or its record, but the trial proceeded to judgment upon the supposition that the survey was duly recorded, and a copy of the record in evidence ; and as no question arose upon it, there was no occasion to attach a copy thereof to the case as made up for this court. Wo cannot, therefore, assume that no such record exists, but must take the case as it is made up, which shows that a copy of the record was there treated as in the case, and so it must be regarded here.
But suppose no record of the survey of the road was in fact *272made as required by the charter, would that preclude the plaintiffs’ recovering in this case ? It appears that the road was, in fact, surveyed, located, and its limits clearly defined across the land of the defendant by the corporation, and of this the defendant had full knowledge at the time. He was, in fact, then the president of the corporation. With a full knowledge of all the- facts, he proceeds to arrange with the Company as to the damages for the land so taken; and, having satisfactorily fixed the amount, he receives the sum agreed upon. He permits the Company to enter upon and take possession of it, and construct their railroad over it. Now, if we say that the plaintiffs cannot recover in consequence of the neglect to record the survey alone, it must be on the ground that the Company acquired no rights whatever in their road across the defendant’s premises, and that the defendant now has.the right to enter upon it, and take the entire and exclusive possession of it. This, we think, will hardly be claimed.
The survey and location of the road is what constitutes the taking of the land over which it is laid; and when so taken, it is the duty of the Company to cause a certificate of the survey to be recorded, and to pay the damages‘to the land owner before they take possession. If, however, the land owner,, as in this case, agrees upon his compensation, and permits the Company to take possession of the land, and construct their road thereon, we think it is then too late .for the land owner to take advantage of the omission by the Company in these respects.
There is another reason, we think, why the defendant cannot avail himself of this objection. He was at the time the president of the Company. As such, it was Ms duty to see that the survey was recorded. To allow Mm now to take advantage of the omission to make such record, would be to permit him to take advantage of his own wrong, to the prejudice of the Company that he was bound faithfully to serve.
We think this case is to be governed by the same principles that are applicable in all cases where the land is taken by a railroad company, a survey made and duly recorded as required by the charter.
It is further claimed by the defendant that the right of the plain*273tiffs to recover is affected by the agreement between the defendant and the committee appointed by the Company to settle the land damages on the line of the road, by which he reserved the-herbage and all that grew upon the land outside of the- track of the road ; and he says : “ I considered that this reservation was taken, into account in fixing my land damages.”
It may be observed that, in this arrangement, neither party was contracting for the land, and this agreement had no reference to its transfer by the defendant to the Company. The Company did not take the land by purchase, in the ordinary acceptation of that term, but took it by survey and location, under and according to the power and authority conferred by their charter. There is no qualification or limitation in respect to what they take ; the extent of the acquisition is determined only by the1 power to take, given by the act of incorporation. The defendant had no power to impose restrictions, or make reservations. When the Company had so taken the land, they had obtained all the title to it they could acquire, subject to the payment of the damages- to the owner. If the Company had the power to take from the defendant the right to enter upon the land so taken, and cut and take away what was growing thereon, then they had taken it, and no attempt to make a reservation by the defendant, as he states, would be of any avail.
If, then, the defendant obtained any rights by virtue of what transpired between him and the committee of land damages, such rights depend solely upon that agreement, without aid from the fact that the land was taken from the defendant, the same as if the agreement had been made with a party not an adjoining- land owner. We think the most that can be claimed for the defendant is a verbal agreement, between him and the Company, that he- may enter, and cut and take away what grew on the land outside of the track of the road. What would be the effect of such an agreement in a case like the present, between the Company and the defendant, it is not necessary now to enquire. As it seems very clear that the present plaintiffs, having purchased the entiie rights of the Company in this road, and taken a lease thereof' final! time, without any knowledge of the existence of any such *274agreement,- or anything to indicate its existence, so as to put them upon enquiry, but finding the Company in full possession up to the time of the lease, they cannot be affected by the existence of any such agreement. This brings us to the consideration of a more important question, one that affects not only the parties to this controversy, but, to a greater or less extent, probably, all-the railroad corporations and operators, and the land owners adjoining-railroads, in this state, namely : Has the owner of the land adjoining the road, and from -whom the land was taken by the railroad company, for the construction and legitimate use of the road, under the power conferred by their charter, the right, at will, to enter upon the land, after it is so taken, and while it is being so used, and cut and take therefrom the herbage and other products of the soil growing thereon ? This question is often referred to in the books, in the discussion of questions of a somewhat similar character, but I am not aware that this precise question has been decided —it certainly has not in this state — but I think the inclination of judges, and legal writers, is strongly towards the opinion that those who control, manage and operate the railroads in the country should have the full and exclusive possession and control of the land taken, for the legitimate use of the road, within the lines thereof, and embraced within the 'fences that, by the laws of this state, the railroads are required to keep upon the sides of their road. Although the right of the railroad company is but an easement, and not a fee, this does not preclude their having the sole and exclusive possession of the land while in the exercise of that easement. The fact that, upon the abandonment or surrender of their road and charter, the land would revert to the former owner, does not curtail their right to its exclusive use if necessary. It is said by Redfield, C. J., in Jackson v. Rut. & Bur. R. R. Co., 25 Vt., 150" court="Vt." date_filed="1853-02-15" href="https://app.midpage.ai/document/jackson-v-rutland--burlington-railroad-6574952?utm_source=webapp" opinion_id="6574952">25 Vt., 150, “that the railway company must, from the very nature of their operations, in order to the security of their passengers, workmen, and the enjoyment of the road, have, at all times, the right to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the former owners, in any mode, and for any purpose.” He says further, “that as to the right of -the former owners to the herbage growing on the land, *275or to dig up the soil and subsoil, it is not necessary here to consider.” He also says that “it is obvious that the right of the railway to the exclusive occupancy must be for all the purposes of the road, much the same as that of an owner in fee.” Although this question was not distinctly before the court in that case-, still it stands as the deliberately expressed opinion of an eminent judge and jurist, and one specially learned in the law of railways, and as such the opinion is entitled to great weight. As to the right of the adjoining land owner to enter and dig up the turf, the question was distinctly before this court in the case of the Conn. Pass. Riv. R. R. Co. v. Holton, 32 Vt., 43" court="Vt." date_filed="1859-03-15" href="https://app.midpage.ai/document/connecticut--passumpsic-rivers-railroad-v-holton-6576693?utm_source=webapp" opinion_id="6576693">32 Vt., 43, and it was there expressly decided that the land owner had no right to enter'for that purpose. In delivering the opinion in that case, Judge Aldis cites approvingly the language of Judge Redfield above referred to, and then proceeds as.follows: “ Without'stopping to enquire whether a possible case may not exist when the land owner' might enter to obtain mines or mineral's, or to. take herbage or other vegetable growth, it is obvious that the possession of the railroad company must, ordinarily and practically, be absolute and exclusive. Hence any entry by the land owner, or' any act done by him upon the land, which tends in the least to impair the structure of the road, to endanger the running of trains, to lessen the safety or comfort of passengers, or generally to embarrass the use of the road for the purposes for which it was built, must be deemed wrongful.” The principle involved in that case is substantially’ the same as that in the present, and it is not easy to make a material distinction between the two. It is true there are some objections to the act done, in one case, that do not exist in the other. The annoyance from dust, occasioned by removing the turf, would not result from cutting the herbage, but the instances in which the land owner would wish to remove the turf woidd be rare, if the right were conceded ; but if the right to remove the herbage be conceded, a large part of the adjoining land owners throughout the state would be found, at the proper season, within the lines of the roads, with their hired men, tools and perhaps teams, for the purpose of taking off the herbage, and the detriment to the railroad company, and the danger to trains and passengers, would be *276increased a thousand fold in the latter case beyond that in the former. The men employed by the land owners would be likely to be careless, both in respect to being upon the track in person, and temporarily laying their tools thereon, from which accidents might reasonably be expected to occur, to avoid which a constant and additional degree of watchfulness would be required on the part of the engineers having trains in charge. They would know that they were always liable to find such working parties upon their road, but when and where, and under what circumstances, they would have no means of determining. And under the best management, on the part of the railroad company, accidents might reasonably be expected to occur from such causes. In the removal of such causes the railroad companies, 'and the traveling-public, are greatly interested. Everything, that tends to increase the danger of travel upon onr railroads, public policy requires should be prevented if practicable. The value of this right to the land owners is slight, and, in a majority of the cases, was probably well characterized by the defendant in this case, when he stated, in his testimony, that the damage for cutting the grass was not two and sixpence. The railroad companies are always likely to suffer severely in their property, in cases of accident. They are also, to a certain extent, liable to others for injuries resulting from such causes, and to this liability they should be strictly held. At the same time, we think they should have such sole and exclusive control of the land within the lines of their road as shall enable them so to keep it as to exclude all probability of any accident resulting from any outside interference with such possession.
Upon the facts developed in this case, we think the pro forma ruling of the court below, in directing a verdict for the defendant, was erroneous.
Judgment reversed, and case remanded.