By the Court,
Sutherland, J.
The plea demurred to sets out substantially the enacting part of the seventh section of the act by which the defendants were incorporated, and the averments which it contains were undoubtedly sufficient to bring them within its provisions, and to justify the trespasses complained of, unless the enacting clause is qualified and restrained by the proviso contained in the same section. It was obviously the intention of the legislature to authorize the corporation to enter upon and take possession of such land as they should think necessary for the route and construction of their road, without requiring as a condition precedent that the same should be appraised and paid for in the manner prescribed in the act. No survey or examination could be made without a previous entry. An examination of the soil by ploughing or digging might be indispensable, in order to determine the practicability of a particular location, or the expediency of adopting one route in preference to another. The quantity of land necessary for the construction of the road, and the damages sustained by the owner in consequence of the taking or occupation thereof by the company, could scarcely in any instance be accurately determined until the road was completed or considerably advanced in its construction. After a particular route was surveyed, it might become necessary to abandon it, in consequence of difficulties from the nature of the soil, or unforeseen obstructions, which were developed during the progress of the work. Many considerations of this description would render it highly expedient that it should not be made imperative upon the corporation to attempt to purchase the land required, from the owners, or to have their damages assessed faster than the road was substantially completed. The act accordingly authorizes them to cause surveys and examinations to be made, and to enter upon and take possession of and use all such lands within the prescribed limits as may be indispensable for the construction of the road, without any [55]*55qualification. The proviso relates merely to the final and absolute vesting in the corporation of the fee simple of the land thus taken possession of. The land must be purchased or appraised and paid for before the title shall vest in the corporation •; but the very terms of the proviso imply a previous possession and appropriation by the corporation of the lands, which it is made their duty to purchase or cause to be appraised and paid for. “ Provided that all lands thus entered upon and taken possession of, and used, and which are not donations, shall be purchased by the said corporation,” &e. The entry and possession and use are to precede the purchase and appraisal, and the commissioners are to “ determine the damages which the owner or owners of the land so entered upon by the said corporation has or have sustained by the occupation thereof” The damages are to be the result of the occupation or taking of the land. The occupation must of course precede the assessment of the damages. The purchase of the land, on the payment of the appraised damages, is a condition precedent to the vesting of the fee simple of the land required for the road, in the corporation ; but not to their right to enter upon and take possession of and use it for the construction of their road. Such appears to me to be the importof this act,even upon those strict rules of construction which are applied to statutes, clearly and confessedly in derogation of common right.
Nor is the right thus given to this corporation, to enter upon and take possession of the land necessary for the construction of their road, before they are required to pay for it and obtain the absolute title, a new and peculiar feature in this act. Under the highway act of 1813, 2 R. L. 275, § 16, the commissioners of highways are authorized to lay out roads through improved and cultivated land, without the consent of the owners or occupants thereof, upon the application of twelve respectable freeholders ; and the owners are to procure their damages to be assessed in one of several ways, pointed out in the act. The supervisors are then to cause them to be raised and collected in the town, in the same manner as the other town charges, and to pay them to the commissioners, who are to pay i over to the owner. This process of collecting and pay-the damages must necessarily occupy some considera[56]*56ble time ; but in the mean while the land is taken and worked and used, or appropriated by the public as a road. The owner acquires a vested and absolute right to damages; but the actual payment may not be made for a long time after he has been deprived of the use and enjoyment of his land. So also, under the canal law of 1817, p. 302, § 3, the canal commissioners are authorized to take possession of and use of all lands, waters and streams, necessary for the construction of the work, and the damages of the owners are to be subsequently ascertained by appraisers.
The general turnpike act of 1813, 1 R. L. 231, § 3, is an exception to the general rule, clearly and distinctly marked by the very terms of the act. It contains an express provision that nothing in the act contained shall be construed to authorize the president and directors of any company to enter upon any land for the purpose of making their road, until they shall have paid the damages of the owners of the land, according to the provisions of the act.
It has never been deemed necessary that the compensation which the constitution requires should be made for private property, when taken for public use, should be actually paid before entering upon or taking possession of the property. If legal provision for compensation is made, the spirit of the constitution is complied with, and the property which is required for public use may lawfully be entered upon and taken. I am not aware that this principle has ever been questioned. It has already been shown that it has been sanctioned by the legislature in the highway and canal acts. It is explicitly admitted by Judge Spencer and Chancellor Kent, in Bradshaw v. Rogers, 20 Johns. R. 104, 744; and again, by Chancellor Kent, in Jerome v. Ross, 7 Johns. Ch. R. 343, 344; and by this court, in Wheelock v. Pratt, 4 Wendell, 650. And the opinion is strongly intimated in those cases, that a law would not be unconstitutional, which authorized private property to be taken for public use, and entirely omitted to provide the mode of making compensation; and that the officers of government, or other individuals, who should take possession of property under such circumstances, would not be trespassers; and that the owner would have a just claim for compensation, which it [57]*57was to be presumed would be acknowledged by the legislature, and finally paid. This case does not call for the expression of any opinion upon that point.
The defendants, then, were authorized, by their act of incorporation, to enter upon, take possession of and use all such lands, within certain prescribed limits, as were indispensable, for the construction and maintenance of their road. Their plea contains all the averments necessary to bring them within the provisions of the act, and to justify the entry and trespasses complained of.
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By the Court,
Sutherland, J.
The plea demurred to sets out substantially the enacting part of the seventh section of the act by which the defendants were incorporated, and the averments which it contains were undoubtedly sufficient to bring them within its provisions, and to justify the trespasses complained of, unless the enacting clause is qualified and restrained by the proviso contained in the same section. It was obviously the intention of the legislature to authorize the corporation to enter upon and take possession of such land as they should think necessary for the route and construction of their road, without requiring as a condition precedent that the same should be appraised and paid for in the manner prescribed in the act. No survey or examination could be made without a previous entry. An examination of the soil by ploughing or digging might be indispensable, in order to determine the practicability of a particular location, or the expediency of adopting one route in preference to another. The quantity of land necessary for the construction of the road, and the damages sustained by the owner in consequence of the taking or occupation thereof by the company, could scarcely in any instance be accurately determined until the road was completed or considerably advanced in its construction. After a particular route was surveyed, it might become necessary to abandon it, in consequence of difficulties from the nature of the soil, or unforeseen obstructions, which were developed during the progress of the work. Many considerations of this description would render it highly expedient that it should not be made imperative upon the corporation to attempt to purchase the land required, from the owners, or to have their damages assessed faster than the road was substantially completed. The act accordingly authorizes them to cause surveys and examinations to be made, and to enter upon and take possession of and use all such lands within the prescribed limits as may be indispensable for the construction of the road, without any [55]*55qualification. The proviso relates merely to the final and absolute vesting in the corporation of the fee simple of the land thus taken possession of. The land must be purchased or appraised and paid for before the title shall vest in the corporation •; but the very terms of the proviso imply a previous possession and appropriation by the corporation of the lands, which it is made their duty to purchase or cause to be appraised and paid for. “ Provided that all lands thus entered upon and taken possession of, and used, and which are not donations, shall be purchased by the said corporation,” &e. The entry and possession and use are to precede the purchase and appraisal, and the commissioners are to “ determine the damages which the owner or owners of the land so entered upon by the said corporation has or have sustained by the occupation thereof” The damages are to be the result of the occupation or taking of the land. The occupation must of course precede the assessment of the damages. The purchase of the land, on the payment of the appraised damages, is a condition precedent to the vesting of the fee simple of the land required for the road, in the corporation ; but not to their right to enter upon and take possession of and use it for the construction of their road. Such appears to me to be the importof this act,even upon those strict rules of construction which are applied to statutes, clearly and confessedly in derogation of common right.
Nor is the right thus given to this corporation, to enter upon and take possession of the land necessary for the construction of their road, before they are required to pay for it and obtain the absolute title, a new and peculiar feature in this act. Under the highway act of 1813, 2 R. L. 275, § 16, the commissioners of highways are authorized to lay out roads through improved and cultivated land, without the consent of the owners or occupants thereof, upon the application of twelve respectable freeholders ; and the owners are to procure their damages to be assessed in one of several ways, pointed out in the act. The supervisors are then to cause them to be raised and collected in the town, in the same manner as the other town charges, and to pay them to the commissioners, who are to pay i over to the owner. This process of collecting and pay-the damages must necessarily occupy some considera[56]*56ble time ; but in the mean while the land is taken and worked and used, or appropriated by the public as a road. The owner acquires a vested and absolute right to damages; but the actual payment may not be made for a long time after he has been deprived of the use and enjoyment of his land. So also, under the canal law of 1817, p. 302, § 3, the canal commissioners are authorized to take possession of and use of all lands, waters and streams, necessary for the construction of the work, and the damages of the owners are to be subsequently ascertained by appraisers.
The general turnpike act of 1813, 1 R. L. 231, § 3, is an exception to the general rule, clearly and distinctly marked by the very terms of the act. It contains an express provision that nothing in the act contained shall be construed to authorize the president and directors of any company to enter upon any land for the purpose of making their road, until they shall have paid the damages of the owners of the land, according to the provisions of the act.
It has never been deemed necessary that the compensation which the constitution requires should be made for private property, when taken for public use, should be actually paid before entering upon or taking possession of the property. If legal provision for compensation is made, the spirit of the constitution is complied with, and the property which is required for public use may lawfully be entered upon and taken. I am not aware that this principle has ever been questioned. It has already been shown that it has been sanctioned by the legislature in the highway and canal acts. It is explicitly admitted by Judge Spencer and Chancellor Kent, in Bradshaw v. Rogers, 20 Johns. R. 104, 744; and again, by Chancellor Kent, in Jerome v. Ross, 7 Johns. Ch. R. 343, 344; and by this court, in Wheelock v. Pratt, 4 Wendell, 650. And the opinion is strongly intimated in those cases, that a law would not be unconstitutional, which authorized private property to be taken for public use, and entirely omitted to provide the mode of making compensation; and that the officers of government, or other individuals, who should take possession of property under such circumstances, would not be trespassers; and that the owner would have a just claim for compensation, which it [57]*57was to be presumed would be acknowledged by the legislature, and finally paid. This case does not call for the expression of any opinion upon that point.
The defendants, then, were authorized, by their act of incorporation, to enter upon, take possession of and use all such lands, within certain prescribed limits, as were indispensable, for the construction and maintenance of their road. Their plea contains all the averments necessary to bring them within the provisions of the act, and to justify the entry and trespasses complained of. The assessment and payment of the plaintiff’s damages for the taking of his land, was a condition subsequent to their right of entry, for the purpose not only of surveying, but of making and constructing their road, and which it was not necessary for them to notice in their plea. 1 Chilly's PI. 228, 229. If, notwithstanding their original entry was lawful, the defendants have been guilty of such delay in taking the measures prescribed by the act, to obtain a title to the land, and to ascertain and pay the plaintiff’s damages, as to deprive them of the benefit of such entry, and render them trespassers ab initio, it was incumbent upon the plaintiff to have replied the facts necessary to present that question. Whether an unreasonable delay in paying the plaintiff’s damages would render the defendants trespassers ab initio, it is not necessary now to consider; that question is not presented by the record. That the plaintiff would have an ample remedy, in such a case, in some form of action, there can be no question. Six Carpenters’ case, 8 Coke, 145. 2 Wils. 313. 11 East, 395. 2Ld. Raym. 1424. 5 Taunt. 198. Croke’s Ch. 446. 2 Roll. Abr. 562. 5 Barn. Cres. 485. 11 Com. Law R. 279.
1 entertain no doubt of the entire constitutionality of that provision of the act in question, which authorizes the defendants to take the land which may be necessary for the construction and maintenance of their road, against the will and without the consent of the owners. Rail roads, though made by private corporations, when designed for travelling and transportation, are great public improvements. They can be made profitable to the proprietors only by affording the most [58]*58liberal accommodations to the public. They are, from their very nature, devoted, and exclusively devoted to the public use—upon such terms and conditions as the legislature, in their wisdom, think reasonable and proper, in order to insure to the owners of the stock an adequate remuneration for the hazard and expense incurred in their construction. But it is not my intention to discuss this branch of the case. The principles applicable to it are very ably and elaborately considered in the arguments of counsel, and in the opinion of the chancellor, in the ease of Beekman v. The Saratoga and Schenectady Rail Road Co., 3 Paige, 45; vide also 4 Wendell, 650. It was also intimated by the counsel for the plaintiff, that another case was pending, in which it was their intention more fully and distinctly to present and discuss this point. The opinion here expressed is not therefore intended to preclude any future discussion of the question.
Judgment for defendant on demurrer, with leave to plaintiff to reply.