Vredenburgh, J.
This is an action in trespass for entering, on the first of May, 1856, upon the plaintiff’s land, and laying a railroad track on it. The plea is, not guilty, with notice that the Elizabeth and Somerville Railroad Company was incorporated on the 9th of February, 1831, and were thereby authorized to construct their road with as many sets of tracks as they might deem necessary ; and that, when the route should be surveyed, and the survey deposited in the office of the secretary of state, it would be lawful for them to enter upon, take possession of, hold, have, use, and occupy said lands, and do all things necessary regarding said road, provided payment or tender of all damages be made before entry ; that the route of said road was located over the locus in quo sixty-six feet wide, and that the road, many years before the suit, was constructed thereon, and that the damages were paid and satisfied at the taking, and that the Somerville and Easton Railroad Company was incorporated, and, by act passed February 26th, 1847, were authorized to purchase the first-named road, and so did, and thereby were invested with all the rights of the Elizabeth and Somerville Railroad Company, and that the said company had had possession over twenty years.
It is not questioned but that the Somerville and Easton company succeeded to and held all the rights in tin's regard that the Somerville and Elizabethtown company had. The rights of the parties, therefore, are under the old, and not under the new constitution.
What were the rights, therefore, of the Elizabethtown and Somerville Railroad Company? These are prescribed by their charter, (Pamphlet Laws, 1831, pp. 81, 86.) The power granted to unm is to construct a railroad between the termini, passing as near as practicable through Plain-[212]*212field, not exceeding sixty-six feet wide, with as many rails as they may deem necessary.
These are the powers granted. It is not complained that this road is not between the termini,'or as near Plain-field as practicable, nor exceeding sixty-six feet wide, nor with more tracks than they deem necessary. The complaint is not that the company have exceeded their powers. The legislature, under the old constitution, by virtue of their power of eminent domain, would have had a right to have constructed this road themselves without compensation, in the same way and for the same reason that they would have had the power to lay a tax. This power they delegated to the railroad company, with power, when the route was determined on and the survey thereof deposited in the office of the secretary of state, to take possession of and hold said lands with the consent of the owner, or without consent, upon tender of damages. It appears, by the case, that the road was worked and built in 1837, and that one Wood was'then the owner, who, in 1844, sold to the plaiutiff. On the trial, the defendants offered to prove that they had the parol consent of Wood'to work and build their road where they did.
This evidence was overruled by the court, upon the ground that the consent should have been in writing. But the statute does not require the consent to be in writing. The statute of frauds does not apply. That only applies where there is no other statute regulating the matter. This matter is regulated by its own special statute, which is governed by its own terms. Nor does the reason of the statute of frauds apply. The legislature had the power to take without consent or compensation, but saw fit to prescribe that its agents should either get consent or pay. The evidence of either this payment or consent is not prescribed, and in either case may be such as satisfied the tribunal to pass upon it. The misapprehension of the plaintiff is that the defendants get title by the payment or consent, whereas they get title by virtue of the' act, and [213]*213the determinal ion of (he agents of the state to appropriate it, and the lodging the survey in the office of the secretary of state.
But the defendants cannot lawfully seize the land before payment or consent, and if they do so they are liable as trespassers. But the land is nevertheless condemned, and the right to use it vested in the agents of the state as long as the public use it; and the remedy of the owners is an action of trespass. I am not now speaking of the new, but the old constitution.
This consent, therefore, spoken of in the charter of 1831, has no analogy to where a person claims right to hold land by leave and license. It is the case where a person in possession gives consent to the person entitled to take possession, and it may be proved directly by verbal consent or inferred from long acquiescence.
There is another corollary which follows from the same principles. Where land is thus seized unlawfully, the whole injury is done at the first, seizure. The state holds the land ; the owner is entitled to its full value. It is seized, if seized at all, for the whole period it is to serve as a public user. The whole injury is to the person who is owner at the first seizure. If a person buys afterward he buys subject to the public user, and all his rights are subject thereto. There can be no subsequent trespass as against him, and the defendant can defend himself umh-r the general issue without notice. Lands in such eases are seized by the public for great public trusts. This very road has gone on stretching out its arms until it binds together by ties infinitely stronger than its iron bands, the extremities of the continent — in peace, advancing all the highest principles of civilization, and in times of war liable, like other property, and by the same laws as its battle fields, to be seized by the government — one of the mightiest elements of national power either for defence or aggression. It never could be tolerated that any private owner could thus, after consent given, sever the [214]*214sinews of the national strength and lay such' immense interests prostrate at his feet. He is entitled to his pay, either from the government or its agents. If its agents enter without consent or payment, he is entitled to vindictive as well as real damages in trespass, and the whole damage is by the original seizure and to the original owner. It follows ■that if the defendants seized this land without payment or consent, they are liable to the person- who owned the land at the time of the seizure as for a condemnation, and not to any subsequent owner. The plaintiff’s grantor, therefore, if anybody, is the one entitled to damages. The right to these damages has not been, nor could they be (being a mere chose in action) assigned to the plaintiff. So that, whether the defendants took possession originally rightfully or wrongfully, it is manifest that the present plaintiff has no legal cause of action.
Let the judgment below be reversed.
Ogden, J. This was an action for trespass, brought in 1856, for an unlawful entry upon and occupancy of the half part of a street in the village of Plainfield, in the county of Union, on the line of the route of the Central Railroad Company of New Jersey.
The case before this court shows that the railroad was located and built over the locus in quo in 1837 or 1838,- and has been so used up to the commencement of this suit; that one Jacob W. Wood owned the property from the first of September, 1836, tt> the 27th of September, 1814, when he sold it to the present plaintiff.
Free access — add to your briefcase to read the full text and ask questions with AI
Vredenburgh, J.
This is an action in trespass for entering, on the first of May, 1856, upon the plaintiff’s land, and laying a railroad track on it. The plea is, not guilty, with notice that the Elizabeth and Somerville Railroad Company was incorporated on the 9th of February, 1831, and were thereby authorized to construct their road with as many sets of tracks as they might deem necessary ; and that, when the route should be surveyed, and the survey deposited in the office of the secretary of state, it would be lawful for them to enter upon, take possession of, hold, have, use, and occupy said lands, and do all things necessary regarding said road, provided payment or tender of all damages be made before entry ; that the route of said road was located over the locus in quo sixty-six feet wide, and that the road, many years before the suit, was constructed thereon, and that the damages were paid and satisfied at the taking, and that the Somerville and Easton Railroad Company was incorporated, and, by act passed February 26th, 1847, were authorized to purchase the first-named road, and so did, and thereby were invested with all the rights of the Elizabeth and Somerville Railroad Company, and that the said company had had possession over twenty years.
It is not questioned but that the Somerville and Easton company succeeded to and held all the rights in tin's regard that the Somerville and Elizabethtown company had. The rights of the parties, therefore, are under the old, and not under the new constitution.
What were the rights, therefore, of the Elizabethtown and Somerville Railroad Company? These are prescribed by their charter, (Pamphlet Laws, 1831, pp. 81, 86.) The power granted to unm is to construct a railroad between the termini, passing as near as practicable through Plain-[212]*212field, not exceeding sixty-six feet wide, with as many rails as they may deem necessary.
These are the powers granted. It is not complained that this road is not between the termini,'or as near Plain-field as practicable, nor exceeding sixty-six feet wide, nor with more tracks than they deem necessary. The complaint is not that the company have exceeded their powers. The legislature, under the old constitution, by virtue of their power of eminent domain, would have had a right to have constructed this road themselves without compensation, in the same way and for the same reason that they would have had the power to lay a tax. This power they delegated to the railroad company, with power, when the route was determined on and the survey thereof deposited in the office of the secretary of state, to take possession of and hold said lands with the consent of the owner, or without consent, upon tender of damages. It appears, by the case, that the road was worked and built in 1837, and that one Wood was'then the owner, who, in 1844, sold to the plaiutiff. On the trial, the defendants offered to prove that they had the parol consent of Wood'to work and build their road where they did.
This evidence was overruled by the court, upon the ground that the consent should have been in writing. But the statute does not require the consent to be in writing. The statute of frauds does not apply. That only applies where there is no other statute regulating the matter. This matter is regulated by its own special statute, which is governed by its own terms. Nor does the reason of the statute of frauds apply. The legislature had the power to take without consent or compensation, but saw fit to prescribe that its agents should either get consent or pay. The evidence of either this payment or consent is not prescribed, and in either case may be such as satisfied the tribunal to pass upon it. The misapprehension of the plaintiff is that the defendants get title by the payment or consent, whereas they get title by virtue of the' act, and [213]*213the determinal ion of (he agents of the state to appropriate it, and the lodging the survey in the office of the secretary of state.
But the defendants cannot lawfully seize the land before payment or consent, and if they do so they are liable as trespassers. But the land is nevertheless condemned, and the right to use it vested in the agents of the state as long as the public use it; and the remedy of the owners is an action of trespass. I am not now speaking of the new, but the old constitution.
This consent, therefore, spoken of in the charter of 1831, has no analogy to where a person claims right to hold land by leave and license. It is the case where a person in possession gives consent to the person entitled to take possession, and it may be proved directly by verbal consent or inferred from long acquiescence.
There is another corollary which follows from the same principles. Where land is thus seized unlawfully, the whole injury is done at the first, seizure. The state holds the land ; the owner is entitled to its full value. It is seized, if seized at all, for the whole period it is to serve as a public user. The whole injury is to the person who is owner at the first seizure. If a person buys afterward he buys subject to the public user, and all his rights are subject thereto. There can be no subsequent trespass as against him, and the defendant can defend himself umh-r the general issue without notice. Lands in such eases are seized by the public for great public trusts. This very road has gone on stretching out its arms until it binds together by ties infinitely stronger than its iron bands, the extremities of the continent — in peace, advancing all the highest principles of civilization, and in times of war liable, like other property, and by the same laws as its battle fields, to be seized by the government — one of the mightiest elements of national power either for defence or aggression. It never could be tolerated that any private owner could thus, after consent given, sever the [214]*214sinews of the national strength and lay such' immense interests prostrate at his feet. He is entitled to his pay, either from the government or its agents. If its agents enter without consent or payment, he is entitled to vindictive as well as real damages in trespass, and the whole damage is by the original seizure and to the original owner. It follows ■that if the defendants seized this land without payment or consent, they are liable to the person- who owned the land at the time of the seizure as for a condemnation, and not to any subsequent owner. The plaintiff’s grantor, therefore, if anybody, is the one entitled to damages. The right to these damages has not been, nor could they be (being a mere chose in action) assigned to the plaintiff. So that, whether the defendants took possession originally rightfully or wrongfully, it is manifest that the present plaintiff has no legal cause of action.
Let the judgment below be reversed.
Ogden, J. This was an action for trespass, brought in 1856, for an unlawful entry upon and occupancy of the half part of a street in the village of Plainfield, in the county of Union, on the line of the route of the Central Railroad Company of New Jersey.
The case before this court shows that the railroad was located and built over the locus in quo in 1837 or 1838,- and has been so used up to the commencement of this suit; that one Jacob W. Wood owned the property from the first of September, 1836, tt> the 27th of September, 1814, when he sold it to the present plaintiff. That the street called Third street, upon which the railroad is located and constructed, was an open public highway when the company entered upon it, and was so continued to the present time; and that in purchasing lots facing on the street, the plaintiff) by his deed, took title to the centre line of the street with full, actual knowledge that the ground within the lines of the public highway was occupied by the railroad company. Under such circumstances, the plaintiff [215]*215brought an action of trespass against, the company for mi unlawful entry upon and user of his land lying on the one side of the centre line of Third street.
He proved his title and rested his case; and in defence the company gave in evidence the charter under which the railroad was constructed, passed on the 9th of February, 1831, and also the survey and location of the route of the same, made and filed under the provisions of the 6th section of the act of incorporation, for the purpose of showing that they are not trespassers, but were in possession of the land by authority of law for the purpose of maintaining and working a railroad.
The section referred to in the charter provides that when the route shall have been determined upon and a survey of the same deposited with the secretary of state, it should be lawful for the company to enter upon, take possession of, hold, have, use, occupy, and excavate any lands covered by it, and construct their road thereon, subject to such compensation as is thereinafter provided. If this was the whole section, under the decision of this court, as reported in 4 Zab. 587, there would he no doubt of the right of the company to enter upon the laud and construct a railroad before making compensation. But a proviso was introduced in it, requiring that, before the company should enter or break ground in the premises, the payment or tender of payment should be made of ail damages for the occupancy of lands through which the railroad may be laid out, unless the consent of the owners of the land be first had and obtained.
The company, in further support of their justification or defence, offered to prove, by parol testimony, the consent of Mr. Wood, being the owner of the land when the road was projected and constructed, that the railroad company might take possession and occupy at the time when the road was constructed; and also offered to prove his acquiescence in such use of it during the whole time of his [216]*216ownership. These offers were objected (o by tiie counsel for the plaintiff, and were overruled by (he court.
I think that the offers were both material and competent. The testimony is not within the prohibitions of the statute of frauds. If the legislature had intended that the only evidence of a consent should be a writing signed by the landowner, they would have said so in direct language. No such kind of evidence is required by the charter, which Í think ought to regulate us in this case; and the way was open at the trial for the defendants to satisfy the jury, if they could do so by oral proofs, that the company entered upon, the land, ami constructed the railroad and enjoyed the possession-thereof for years, by the expressed consent and continued acquiescence of the person who then owned the land during his ownership.
Tin's is a suit in trespass. Unlawful entry and unlawful acts after such entry are the’gist of the action.
If the entry and occupation complained of will support trespass, an action of ejectment could also be maintained.
The public have acquired valuable rights of travel upon the line of the railroad. Mails are carried over it, immense quantities of produce, fuel, and other necessaries of life are hourly transported over it, and those public rights ought not to be put iu peril by such a construction being put upon the charter as might jeopardise the use of a great public thoroughfare, when the land-owner who feels injured can ‘haveAnother adequate mode of redress. It the plaintiff is defeated in this suit, he can prosecute the company in action ex contractu for such compensation as he may be entitled lo recover.
The company are trustees, and the public are cestuis que. trust in a great highway constructed more than twenty years .ago, under a power given by the legislature iu the exercise of their right of eminent domain.
Expensive investments have been made by citizens, and valuable improvements have grown up along the line 'of the railroad since it has been in operation. It would [217]*217be contrary to public policy, that after the inhabitants of the state have entered upon the enjoyment of the benefits contemplated to result from the construction of a great public improvement authorized by the legislature, that the company who have received and acted under the charter, after a part performance of their contract with the state, should have it within their power, by obstinately withholding compensation from a few land-holders, to permit a great line of travel ■to be interrupted, and its continuity, perhaps, seriously impaired.
There was error in overruling the testimony offered by the defendants, and the judgment should be reversed, and a venire de novo be awarded.