Hill v. Mohawk & Hudson Rail-Road

5 Denio 206

• Court: New York Supreme Court
• Decided: January 15, 1848
• Status: Published

Opinions

By the Court, Beardsley, Ch. J.

Two modes are indicated in the act of 1838, by which this corporation might acquire title to the land required for the new route of their railway; first, by voluntary sale and conveyance, and secondly, by appraisement and payment of the value as assessed. (Laws 1838, p. 194, §§ 4 to 11.) An appraisement was required where there was an inability to convey, a refusal to sell, or a disagreement as to the price of the land. (Id. § 4.) In every such case the corporation was to present a petition to a judge, “describing the lands so required,” and stating sundry other matters ; upon which petition proceedings were to be taken before the judge for the appointment of a jury of appraisers. (§§ 5,6.) The appraisers were to view the premises so proposed to be taken, (§ 8,) and assess the value thereof and the damages the owners might “sustain by taking their lands, by injury to buildings, and in the construction of said road, without any deduction on account of any real or supposed benefit which such owner” might derive from the construction of the road. (§§ 8,4.) A certificate was to be made by the appraisers, describing the land so proposed to be taken and which was appraised by them; and on proof of payment of the amount awarded, &c. the corporation was to become the owner of said land in fee simple. (§§ 8, 11.)

The petition presented to the judge in the present case is not before us, so that we are unable to learn from that what land in particular was therein described. But the appraisers were not only bound to appraise the land described in the petition, but also, themselves, to describe in their certificate, the land valued by them. The latter has been done by them, and in a way which precludes the supposition that, in the petition, the land was described as subject to any reservation, qualification, or condition whatever. It seems to me the papers before us show clearly that the petition was such as the act requires; but if there was doubt on this point, we could not assume that the land was described in the petition in a way not authorized by the statute.

The object in reserving an easement to the original owners of this land must have been to procure its valuation at a reduced sum, and thus save expense to the corporation. All this was very proper to be adjusted by the parties, and might be mutually advantageous to them; but I do not see that the statute authorizes land to be taken, compulsorily, on any such terms or conditions. The corporation is to become seized in fee simple of the land, (§ 11,) and the act requires the full value to be assessed. (§ 4.) I therefore think these appraisers plainly erred in annexing the qualifications and condition as specified in their certificate. They must have supposed the right thus assumed to be reserved to the owners of the land, was beneficial to them, and consequently the land must have been assessed below its full value, in the estimation of these appraisers. It may be that the reserved right of these owners would be important to them, but of that they must be allowed to judge for themselves. Neither the corporation, or the appraisers, can compel the owners to accept the benefit thus proffered. The appraisers should have given the full value, for upon that condition only was there any authority under this act to acquire the land by a compulsory proceeding.

I think the certificate and award of the appraisers should be set aside and vacated.