Williams, J'.
The first question is, what estate passed under the decree or order in chancery from plaintiff to the railroad company? Was it an easement or a fee ? If it be conceded the term of existence of the railroad corporation was fixed at fifty years, this fact would not have restricted the corporation from taking a fee (Nichols agt. The N. Y. and E. R. R. Co., 12 N. Y., 121-128).
The question seems to be, what interest in the property the charter of the railroad company provided should be vested in or conferred upon the corporation.
The counsel for defendant argues, from the language of the ■ charter this interest was a fee, and cites from Wood's Railroad Law (vol. 2, p. 764) the proposition:
“The question as to whether the charter authorized the 'taking of a fee or an easement is one of construction to be determined by the courts, in view of the language used in the ••act giving authority to take it, and of the purposes for which it was taken.”
The counsel for plaintiff seems to rely mainly upon Heard agt. The City of Brooklyn (60 N. Y., 242), and String agt. The City of Brooklyn (68 N. Y., 1). These two cases, so far as the •question we are examining is concerned, were practically the same. - The question involved was what estate a railroad corporation took in lands appropriated by it under its charter (chap. 256, Laws of 1882), and it was held to be an easement and not a fee. A reference to the case in the 60th New York ■ does not show this question was discussed at all by the court. Sapallo, J. writing the opinion, merely says: “ By the pro- ■ eeedings for the acquisition of the lands in question, under the -act incorporating the Brooklyn and Jamaica Railroad Company [334]*334(Laws of 1832, chap. 256), the company became entitled, only to the* use of the land for the purpose of operating its railroad; the fee remained in the original owners, subject only to that use, and on the discontinuance of the use the owners were entitled to resume possession of the land.”
In the 68th New York, Folger, J., writing the opinion upon the subject says: “ The decision of this case in the 60th New York was put fairly upon the ground that whatever interest the railroad company had in the lands in suit had ceased, and that on that cessation the plaintiffs were entitled to resume possession, that the fee remained in the plaintiffs, and that the right of the railroad was a right to use for the purpose of operating its rdad and no more. The appellant here strives to make out that the lands were not taken for a mere right of way or other easement, but that there was an appropriation of the lands; an examination of the charter shows that the railroad company was authorized to appropriate the lands, hut only for its oum use, for the purpose contemplated by the charter. That purpose was to maintain and continue a railroad for fifty years over a designated route. All the legal'proceedings for the taking of the lands show that such was the appropriation made, and that the damages were assessed for such an appropriation. The right of appropriation was given and exercised, but it was only for a use, limited in time and in kind or purpose. Having held before in this case that the purpose and use for which, the appropriation was made, and for which the damages were assessed and paid, had ceased hy the acts of the railroad company, we will adhere to that decision until reason for change is shown in a new state of facts.”
Referring to the act incorporating the railroad corporations in these two cases (chapter 256 of Laws of 1832), we find it provided by section 16 that in case the corporation, should not be-able to acquire the title to the lands by purchase or voluntary session, it should be lawful for it to appropriate so much of the-lands as should be necessary to its own use for the purposes contemplated in this act; by section 17 it sh'ould present to the-[335]*335vice-chancellor a petition, among others things praying for the appointment of appraisers to assess the damages which the owners would sustain by reason of the appropriation thereof by the corporation to its own use; by section 19 the vice-chancellor-should appoint three disinterested freeholders for the purpose of assessing such damages; by section 20 the appraisers should proceed by viewing the lands, and by such other evidence as the parties might produce before them to ascertain and assess • the damages which the owners would sustain by an appropriation of their -lands- for the use or accommodation of such railroad -or its appendages; by section 21 the appraisers should make a report to the vice-chancellor, among other things specifying the damages which the owners would sustain by reason of the appropriation of their lands for the purposes aforesaid, and the vice-chancellor might modify the assessment as should appear just; by section 22, on payment of the damages thus assessed, with the • expenses of assessment, or depositing same in bank directed by vice-chancellor, the corporation should immediately become entitled to the use of the lands for the purposes aforesaid.
These provisions of the charter would seem to leave no doubt but a mere easement was given the corporation by this act-The counsel for plaintiff here claims this charter and the charter of the Utica and Schenectady Railroad Company (chapter 294, Laws of 1833) are substantially alike. If they were, I should have no difficulty in holding the plaintiff never parted with the fee in the premises in question.
By the charter we have here to interpret, it was provided the corporation might purchase and receive donation of and hold such real estate as was necessary or convenient, and it should he lawful, for it to enter upon, take possession of and use all such lands as might be indispensable for the construction and mainte- - nance of the road, hut all lands which were not donations should be purchased, and at a price to be mutually agreed on, and in case of a disagreement as to price, application might be made to the court of chancery, and persons should be appointed to appraise: [336]*336the lands (not tbe damages for tbe use of tbem) and tbe appraisers should ayard to the owners what they should deem to be tbe full value of tbe lands and upon payment of tbis appraisal (tbe full value of tbe lands) and all expenses of tbe appraisal, tbe decree or order should be made.
So far it seems ^o me every word Qf tbe charter points to tbe acquiring of tbe fee in tbe lands, and not an easement merely. It is said tbe corppration may have tbe land, but it must purchase it if not donated, and it must pay on such purchase a price to be agreed on, and only in case- of disagreement as to price are appraisers to be called in, and then they are to appraise the lands and to award to tbe owner tbe full value thereof Upon payment of tbe full value, practically tbe price fixed by tbe appraisers on account of tbe inability t© agree on tbe price to be paid upon a -purchase, was it not intended tbe corporation should acquire tbe fee to tbe property ? Any other construction, . it seems to me, would be unjust and unreasonable.
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Williams, J'.
The first question is, what estate passed under the decree or order in chancery from plaintiff to the railroad company? Was it an easement or a fee ? If it be conceded the term of existence of the railroad corporation was fixed at fifty years, this fact would not have restricted the corporation from taking a fee (Nichols agt. The N. Y. and E. R. R. Co., 12 N. Y., 121-128).
The question seems to be, what interest in the property the charter of the railroad company provided should be vested in or conferred upon the corporation.
The counsel for defendant argues, from the language of the ■ charter this interest was a fee, and cites from Wood's Railroad Law (vol. 2, p. 764) the proposition:
“The question as to whether the charter authorized the 'taking of a fee or an easement is one of construction to be determined by the courts, in view of the language used in the ••act giving authority to take it, and of the purposes for which it was taken.”
The counsel for plaintiff seems to rely mainly upon Heard agt. The City of Brooklyn (60 N. Y., 242), and String agt. The City of Brooklyn (68 N. Y., 1). These two cases, so far as the •question we are examining is concerned, were practically the same. - The question involved was what estate a railroad corporation took in lands appropriated by it under its charter (chap. 256, Laws of 1882), and it was held to be an easement and not a fee. A reference to the case in the 60th New York ■ does not show this question was discussed at all by the court. Sapallo, J. writing the opinion, merely says: “ By the pro- ■ eeedings for the acquisition of the lands in question, under the -act incorporating the Brooklyn and Jamaica Railroad Company [334]*334(Laws of 1832, chap. 256), the company became entitled, only to the* use of the land for the purpose of operating its railroad; the fee remained in the original owners, subject only to that use, and on the discontinuance of the use the owners were entitled to resume possession of the land.”
In the 68th New York, Folger, J., writing the opinion upon the subject says: “ The decision of this case in the 60th New York was put fairly upon the ground that whatever interest the railroad company had in the lands in suit had ceased, and that on that cessation the plaintiffs were entitled to resume possession, that the fee remained in the plaintiffs, and that the right of the railroad was a right to use for the purpose of operating its rdad and no more. The appellant here strives to make out that the lands were not taken for a mere right of way or other easement, but that there was an appropriation of the lands; an examination of the charter shows that the railroad company was authorized to appropriate the lands, hut only for its oum use, for the purpose contemplated by the charter. That purpose was to maintain and continue a railroad for fifty years over a designated route. All the legal'proceedings for the taking of the lands show that such was the appropriation made, and that the damages were assessed for such an appropriation. The right of appropriation was given and exercised, but it was only for a use, limited in time and in kind or purpose. Having held before in this case that the purpose and use for which, the appropriation was made, and for which the damages were assessed and paid, had ceased hy the acts of the railroad company, we will adhere to that decision until reason for change is shown in a new state of facts.”
Referring to the act incorporating the railroad corporations in these two cases (chapter 256 of Laws of 1832), we find it provided by section 16 that in case the corporation, should not be-able to acquire the title to the lands by purchase or voluntary session, it should be lawful for it to appropriate so much of the-lands as should be necessary to its own use for the purposes contemplated in this act; by section 17 it sh'ould present to the-[335]*335vice-chancellor a petition, among others things praying for the appointment of appraisers to assess the damages which the owners would sustain by reason of the appropriation thereof by the corporation to its own use; by section 19 the vice-chancellor-should appoint three disinterested freeholders for the purpose of assessing such damages; by section 20 the appraisers should proceed by viewing the lands, and by such other evidence as the parties might produce before them to ascertain and assess • the damages which the owners would sustain by an appropriation of their -lands- for the use or accommodation of such railroad -or its appendages; by section 21 the appraisers should make a report to the vice-chancellor, among other things specifying the damages which the owners would sustain by reason of the appropriation of their lands for the purposes aforesaid, and the vice-chancellor might modify the assessment as should appear just; by section 22, on payment of the damages thus assessed, with the • expenses of assessment, or depositing same in bank directed by vice-chancellor, the corporation should immediately become entitled to the use of the lands for the purposes aforesaid.
These provisions of the charter would seem to leave no doubt but a mere easement was given the corporation by this act-The counsel for plaintiff here claims this charter and the charter of the Utica and Schenectady Railroad Company (chapter 294, Laws of 1833) are substantially alike. If they were, I should have no difficulty in holding the plaintiff never parted with the fee in the premises in question.
By the charter we have here to interpret, it was provided the corporation might purchase and receive donation of and hold such real estate as was necessary or convenient, and it should he lawful, for it to enter upon, take possession of and use all such lands as might be indispensable for the construction and mainte- - nance of the road, hut all lands which were not donations should be purchased, and at a price to be mutually agreed on, and in case of a disagreement as to price, application might be made to the court of chancery, and persons should be appointed to appraise: [336]*336the lands (not tbe damages for tbe use of tbem) and tbe appraisers should ayard to the owners what they should deem to be tbe full value of tbe lands and upon payment of tbis appraisal (tbe full value of tbe lands) and all expenses of tbe appraisal, tbe decree or order should be made.
So far it seems ^o me every word Qf tbe charter points to tbe acquiring of tbe fee in tbe lands, and not an easement merely. It is said tbe corppration may have tbe land, but it must purchase it if not donated, and it must pay on such purchase a price to be agreed on, and only in case- of disagreement as to price are appraisers to be called in, and then they are to appraise the lands and to award to tbe owner tbe full value thereof Upon payment of tbe full value, practically tbe price fixed by tbe appraisers on account of tbe inability t© agree on tbe price to be paid upon a -purchase, was it not intended tbe corporation should acquire tbe fee to tbe property ? Any other construction, . it seems to me, would be unjust and unreasonable. Tbe only difficulty, if any, in assenting to tbis construction, arises from tbe remaining provision in regard to tbe matter, viz., when tbe ' decree or order should be recorded tbe corporation should be .possessed of tbe lands for tbe purposes of tbe road, and might enter upon, take possession of, and use them.
Tbis language, standing alone and not read in connection with tbe provisions heretofore referred to, would not seem to imply . tbe interest acquired was a fee or anything further than an easement for railroad purposes. I think, however, when tbis language is read with that before it, tbe whole is consistent and implies a fee, and not a mere easement, was intended by^ tbe charter to be acquired. It will be seen tbe provision at first was that it should be lawful for tbe corporation to take possession of and use all lands that were indispensable. Tbis language has, however, connected with it a “ but ” condition, which must first be complied with before tbe corporation could so take possession of and use tbe lands. Tbis.condition was a purchase at a price, and tbe statute then goes on to provide for fixing tbe price at which tbe purchase could be made. And finally, bav[337]*337ing made provisions for all the conditions, the but in connection with its first statement that the corporation might enter upon and use the lands in compliance with all the provisions, it is finally again, in substantially the same language, provided that the corporation might take possession of and use the lands.
- I am unable to perceive how the cases relied upon by plaintiff’s counsel afford us any precedent for the construction of the charter we are here considering, and I am unable to arrive at any other conclusion but the one favorable to the defendant in this question, that the corporation acquired a fee and not a mere easement, in the premises in question, under and by virtue of fhe decree or order of the court of chancery.
The case cited and discussed by counsel upon both sides of this case (Terry agt. The New York Central and Hudson River Railroad Co., 67 How. Pr., 439), was in many respects entirely like the one we are here considering. It was unlike this case, however, in that the railroad corporation which originally appropriated the lands' in suit; the Tonawanda Eailroad Company, had a charter entirely unlike the charter of the Utica and - Schenectady Eailroad Company, and one under which an easement, and not the fee, was clearly acquired (see chap. 241, Laws of 1832). It was a charter containing the same identical provisions as to the acquisition of lands as those in chapter 256 of laws of 1832, which are heretofore given in considering the cases in the 60th and 68th New York. This case was tried at the Genesee circuit in September, 1884, and, so far as I am aware, the decision there made has never been reversed, overruled or criticised. It was against this same defendant, and judge Haight held the plaintiff to be the owner in fee of the lands in suit, but subject to a public use for railroad purposes, and the time such use should continue was within the discretion of the legislature and not confined to the fifty years, which was the term of existence of the corporation that acquired the lands prescribed in its charter; that such usé had not as yet ceased and determined, and therefore the plaintiff could not recover.
[338]*338It seems to me the counsel for the plaintiff at the argument of our case, did not appreciate the ground upon which judge Haight came to his conclusion in that case. His position was, not that the lands were originally appropriated for fifty years and no more, and yet the legislature might, without the consent of the owner of the lands, extend this fifty years to five hundred years; such a position would hardly be tenable. He says: “The corporation was at first created for the term of fifty years. The legislature, however, reserved to itself by section 80 the .right at any time to alter, modify or repeal the act; it had thus the power to shorten or extend the time that the corporation should exist. The legislature has seen fit to extend its corporate term for the period of 500 years; if, therefore, the lands were taken under this act for the life-time of the corporation, subject to the power of the legislature to shorten, discontinue or extend such corporate life, then I fail to see how the plaintiff can recover. In determining this question the act must be determined by reading the various sections in connection with each other. Section 1 creates the corporation for •fifty years, but by section 30 the time may be lengthened, shortened or the corporation at any time discontinued; so that it is the same as if section 1 read that the corporation, and for the term of fifty years from the passage of this act, or such other time as the legislature shall provide, shall continue to be a body corporate and politic. Section 16, in giving authority to acquire and appropriate lands, provides -that it may do so for the purposes contémplated by the act; and section’ 22, in providing that the railroad company may take- possession of the land after the payment of the damages as appraised, provides that it shall be entitled to the use of the said lands for the purposes aforesaid.”
If I may be permitted to add to this- argument in the same direction judge Haight has taken, I should say: The sections providing .for the acquisition of lands did not provide such use should be for fifty years and no more; time was not designated at ‘all in those sections, but only the purpose, that of maintain[339]*339ing a railroad. It is claimed to be inferred such acquisition was only fifty years because the life of the corporation was only fifty years. The act, however, reserved to the legislature the right to, and it might extend the life of the corporation in carrying out the purpose of maintaining a railroad. When, therefore, the lands were acquired and damages appraised and paid to the owners, all parties knew and understood the acquisition of the lands under the charter was for no certain, definite time but was for a purpose, a public use, and the time the user of the lands should continue for such purpose was discretionary with, and might be determined by the legislature. In this view of the matter, no rights of the property owners would be interfered with or invaded by the legislature, and at the same-time a .very satisfactory principle would be maintained that where property has been taken .for public use, so long as that public use is continued, with the concurrence of the legislature,, the land should not revert to the original owner.
Thisi decision of judge Haight is authority for the proposition urged by defendant here, that assuming the plaintiff never to have been deprived of the fee in the premises in suit and still to be such owner, yet such ownership is' subject to public use by defendants for railroad purposes which use has not ceased or determined, and therefore she is not entitled to the possession of the property and cannot maintain this action.
In the 60th and 68th New York the reason why the lands were held to have reverted to the original owners, was not that the existence of the corporate life had terminated, but the lands had ceased to be used for the purpose of maintaining a railroad, had been abandoned for such purposes.
My conclusion is that the plaintiff cannot maintain this action, and the defendant is entitled to judgment dismissing her complaint, with costs. ,
Formal findings may be argreed upon between parties in accordance with the suggestions in this opinion, and presenter l lor signature. If not agreed upon I will settle same.