The Chancellor.
The defendants in this case were incorporated by an act of the legislature of New-Jersey, on the first of March, eighteen hundred and thirty-six, for the purpose ot constructing a railroad from Camden to "Woodbury. They were duly organized, and surveyed and laid out their road, which passed through the land of the complainant. The parties could not agree as to the price of the land, and the defendants, in pursuance of the ninth section of the act, called commissioners, who made an assessment of the value of the land and damages of the complainant; the amount whereof the defendants tendered to the complainant, which he refused to accept, and appealed from the decision of the commissioners, as by the same section he was authorized to do.
After making the tender of the amount reported by the commissioners,and pending the appeal, the defendants entered upon the land of the complainant and commenced making their road; claiming the right so to do by virtue of their act of incorporation, and the proceedings had under it. The complainant filed his bill for an inj unction, to restrain the defendants from proceeding to make their road until the question of damages was. settled upon the appeal. The injunction was granted. An answer was put in by the defendants to the bill, and upon that answer the defendants now move to dissolve the injunction.
Under these circumstances, the first question presented is, whether the defendants, by virtue of their «barter, and their proceedings under it, are entitled to enter upon and take possession of the land of the complainant and make their road.
The decision of this question depends upon the true construction of the eighth and ninth sections of the act incorporating the defendants. By the eighth section,the company are invested with all the powers necessary to make the road, and for that purpose to enter upon the lands and form the road, &c. 'But their power is limited by this proviso: “That the said company shall pay, or make tender of payment, of all damages for the occupancy of the lands through which the said road may be laid out, before the said company, or any person in their employ, shall enter upon or break ground in the premises, except for the [55]*55purpose of surveying said route, unless the consent of the owner of such land be first had and obtained.”
The ninth section provides, that if the parties cannot agree as to the price of the land, either party may have commissioners appointed, “to assess the price or value of said land, and the damage which any individual may sustain by the road, and from the decision of those commissioners either party may appeal to a jury, whose duty it shall be to assess the value of said land and all damages sustained,” and their verdict shall be final; “and upon payment or tender of the sum so found by the commissioners, or by the jury, with costs, if any, the said corporation shall be deemed to be seized and possessed in fee simple of all such lands and real estate so appraised as aforesaid.”
The rule of construction, in these cases, is correctly stated by the court in the case of Buonaparte v. The Camden and Amboy Railroad Co., 1 Bald. 229. Justice Baldwin, in speaking of the authority of the company to take land, remarks, that “ their authority is special, limited and conditional, and must be strictly followed. The law is made for their benefit, and it is their duty to take the previous steps incumbent on them, or they become trespassers. The principle is this : the company should not be interfered with if they are within their authority; but for the very reason that such large powers were given, the court will keep them within the limits of those powers. They must pursue the precise remedy given them by the law, and are entitled to no other.”
In this case, the precise remedy prescribed by the act in case the parties cannot agree as to the price of the land, is, to call commissioners; and if either party are dissatisfied with their award, to appeal to the next court of common pleas and have the matter submitted to a jury.
The right to appeal from the decision of the commissioners is unconditional, and requires no cause to be shown. It is as much apart of the remedy as the right to call the commissioners. And the decision of the jury is declared to be final. The very act of appealing sets aside the report of the commissioners, and the [56]*56question of the value of the land and damages is yet entirely open. It is the duty of the company, who claim the right to enter, to show affirmatively that they have the right; and I cannot think that they have pursued the precise remedy given them by the law to ascertain the value of the land and damages, when that question is wholly undetermined, and when their right to the property depends upon paying or tendering the amount of the value of the land and damages.
But it was contended on behalf of the company, that by the eighth section of the act, they were authorized to take possession of the land and make their road, &c.; and that the only proviso or condition annexed was, that they should, before entry, pay or make tender of payment, of all damages for the occupancy of the land through which their road should run. And that the ninth section provides the means by which they shall obtain the title to the lands; which may be done after they have the possession or occupancy of the land, and made the road, by virtue of the provisions of the eighth section.
I do not consider this the true construction of the act. By the term occupancy, in the eighth section, I think the legislature meant all the right or interest which the company would have in the land for the purposes contemplated by the act. For, although in the latter part of the ninth section it is said, that the company shall be “deemed to be seized and possessed in fee simple,” yet by the twenty-second section it is declared, that if at any time the road shall be abandoned, the land shall revert to the original owner or owners; thereby limiting the interest of the company to the mere use or occupancy of the land for the purposes contemplated by the act; which gives color to the use of the term occupancyas expressing all the right of the company in the land. If it mean any right less than their entire interest in the land, it must be an occupancy limited either in point of duration, or in the use which may be made of it. No such limitation is expressed in the section, nor can it be intended. Therefore the legislature, in the eighth section, when treating of the damages for the occupancy of the land, must have intended such [57]*57occupancy as was necessary for the company, to make and use the road according to the terms of their charter; and as to the value of the land liol den, it is immaterial whether the company have the title such as they may acquire by virtue of their charter, or the mere right of occupancy. I therefore conclude that the legislature used the term occupancy, to express all the right and interest which the company could acquire in the land.
But if it be otherwise, it does not help the case of the defendants ; for by the eighth section it is expressly provided, that they shall not enter or break ground until they have paid or tendered all damages for the occupancy of the land; and there is no provision for ascertaining those damages, unless that provision is found in the ninth section.
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The Chancellor.
The defendants in this case were incorporated by an act of the legislature of New-Jersey, on the first of March, eighteen hundred and thirty-six, for the purpose ot constructing a railroad from Camden to "Woodbury. They were duly organized, and surveyed and laid out their road, which passed through the land of the complainant. The parties could not agree as to the price of the land, and the defendants, in pursuance of the ninth section of the act, called commissioners, who made an assessment of the value of the land and damages of the complainant; the amount whereof the defendants tendered to the complainant, which he refused to accept, and appealed from the decision of the commissioners, as by the same section he was authorized to do.
After making the tender of the amount reported by the commissioners,and pending the appeal, the defendants entered upon the land of the complainant and commenced making their road; claiming the right so to do by virtue of their act of incorporation, and the proceedings had under it. The complainant filed his bill for an inj unction, to restrain the defendants from proceeding to make their road until the question of damages was. settled upon the appeal. The injunction was granted. An answer was put in by the defendants to the bill, and upon that answer the defendants now move to dissolve the injunction.
Under these circumstances, the first question presented is, whether the defendants, by virtue of their «barter, and their proceedings under it, are entitled to enter upon and take possession of the land of the complainant and make their road.
The decision of this question depends upon the true construction of the eighth and ninth sections of the act incorporating the defendants. By the eighth section,the company are invested with all the powers necessary to make the road, and for that purpose to enter upon the lands and form the road, &c. 'But their power is limited by this proviso: “That the said company shall pay, or make tender of payment, of all damages for the occupancy of the lands through which the said road may be laid out, before the said company, or any person in their employ, shall enter upon or break ground in the premises, except for the [55]*55purpose of surveying said route, unless the consent of the owner of such land be first had and obtained.”
The ninth section provides, that if the parties cannot agree as to the price of the land, either party may have commissioners appointed, “to assess the price or value of said land, and the damage which any individual may sustain by the road, and from the decision of those commissioners either party may appeal to a jury, whose duty it shall be to assess the value of said land and all damages sustained,” and their verdict shall be final; “and upon payment or tender of the sum so found by the commissioners, or by the jury, with costs, if any, the said corporation shall be deemed to be seized and possessed in fee simple of all such lands and real estate so appraised as aforesaid.”
The rule of construction, in these cases, is correctly stated by the court in the case of Buonaparte v. The Camden and Amboy Railroad Co., 1 Bald. 229. Justice Baldwin, in speaking of the authority of the company to take land, remarks, that “ their authority is special, limited and conditional, and must be strictly followed. The law is made for their benefit, and it is their duty to take the previous steps incumbent on them, or they become trespassers. The principle is this : the company should not be interfered with if they are within their authority; but for the very reason that such large powers were given, the court will keep them within the limits of those powers. They must pursue the precise remedy given them by the law, and are entitled to no other.”
In this case, the precise remedy prescribed by the act in case the parties cannot agree as to the price of the land, is, to call commissioners; and if either party are dissatisfied with their award, to appeal to the next court of common pleas and have the matter submitted to a jury.
The right to appeal from the decision of the commissioners is unconditional, and requires no cause to be shown. It is as much apart of the remedy as the right to call the commissioners. And the decision of the jury is declared to be final. The very act of appealing sets aside the report of the commissioners, and the [56]*56question of the value of the land and damages is yet entirely open. It is the duty of the company, who claim the right to enter, to show affirmatively that they have the right; and I cannot think that they have pursued the precise remedy given them by the law to ascertain the value of the land and damages, when that question is wholly undetermined, and when their right to the property depends upon paying or tendering the amount of the value of the land and damages.
But it was contended on behalf of the company, that by the eighth section of the act, they were authorized to take possession of the land and make their road, &c.; and that the only proviso or condition annexed was, that they should, before entry, pay or make tender of payment, of all damages for the occupancy of the land through which their road should run. And that the ninth section provides the means by which they shall obtain the title to the lands; which may be done after they have the possession or occupancy of the land, and made the road, by virtue of the provisions of the eighth section.
I do not consider this the true construction of the act. By the term occupancy, in the eighth section, I think the legislature meant all the right or interest which the company would have in the land for the purposes contemplated by the act. For, although in the latter part of the ninth section it is said, that the company shall be “deemed to be seized and possessed in fee simple,” yet by the twenty-second section it is declared, that if at any time the road shall be abandoned, the land shall revert to the original owner or owners; thereby limiting the interest of the company to the mere use or occupancy of the land for the purposes contemplated by the act; which gives color to the use of the term occupancyas expressing all the right of the company in the land. If it mean any right less than their entire interest in the land, it must be an occupancy limited either in point of duration, or in the use which may be made of it. No such limitation is expressed in the section, nor can it be intended. Therefore the legislature, in the eighth section, when treating of the damages for the occupancy of the land, must have intended such [57]*57occupancy as was necessary for the company, to make and use the road according to the terms of their charter; and as to the value of the land liol den, it is immaterial whether the company have the title such as they may acquire by virtue of their charter, or the mere right of occupancy. I therefore conclude that the legislature used the term occupancy, to express all the right and interest which the company could acquire in the land.
But if it be otherwise, it does not help the case of the defendants ; for by the eighth section it is expressly provided, that they shall not enter or break ground until they have paid or tendered all damages for the occupancy of the land; and there is no provision for ascertaining those damages, unless that provision is found in the ninth section. And I think it cannot be contended that in such case the company may make themselves the judges of the amount of damages, and obtain a right of entry by tendering such amount as they may consider sufficient; for if so, their right of entry would he as perfect by tendering an insufficient amount, as an amount that might eventually turn out to be sufficient.
In the case of Buonaparte v. The Camden and Amboy Co., 1 Bald. 227, the court, in treating of this subject, say, “We should have no hesitation in enjoining the execution of the law, if it provided no compensation, without declaring it void. This would do justice to the individual without defeating the objects of the law.” “We would continue the injunction till the company had made the compensation, without imposing on the owner any burthen of seeking or pursuing any remedy, or leaving him exposed to any risk or expense in obtaining it.” The duty of the legislature is to provide for compensation, and of the company to make it, simultaneously with the disseizin of the owner and the appropriation of his property to the purposes of the law.”
Under any view of the case, I am of opinion that the defendants had no right to enter, except to make their survey; and the only question remaining is, whether this court should interfere by its injunction.
It is a case where the company claim the right to enter, and [58]*58have entered, under color of law, without having complied with the requirements of that law.
In the case of Buonaparte v. The Camden and Amboy Co., already cited, the court, in treating of the remedy, say, “ If liis rights of property are about to be destroyed without the authority of law, or if lawless danger impends over them by persons acting under color of law, when the law gives them no power, or when it is abused, misapplied, exceeded, or not strictly pursued, and the act impending would subject the party com mitting it to damages in a court of law for a trespass, a court of equity will injoin its commission.”
In this case, according to my view, the company have exceeded their power, and not strictly pursued their remedy, and therefore brought themselves within the operation of' the above principle; and I am, therefore, of opinion, that the injunction should be continued until the company shall have agreed with the complainant, or established their rights according to the provisions of the ninth section of their act of incorporation.
Order accordingly.
Cited in Metter v. Eas. and Am. R. R. Co., 10 C. E G. 218,