Nelson v. New Jersey Short Line Railway Co.

71 A. 304, 74 N.J. Eq. 855, 4 Buchanan 855, 1908 N.J. LEXIS 284

Opinion

Per Curiam.

The decree should be affirmed, for the reasons stated by the vice-chancellor. The agreement by the complainant in his lease that a railroad then under way should go through and not be opposed by him in any way, did not, as the defendant argues, operate to lessen his estate in the land. It amounted only to an agreement to allow that matter to be controlled by the lessors. That this is the correct view is shown by the subsequent agreement of the lessors that if an agreement was made by the owner with a railroad company for the construction of a railroad across the farm, the lessee should be paid for any damages he might sustain as tenant, and that the clause in the lease in relation to a railroad was not intended to prevent him from being paid for any such damages. This was a construction of the lease by the parties thereto, and in harmony with tlio language of the lease itself. Whether the effect is not such as to require the compensation to the tenant to be taken out of the amount of the award by the commissioners already paid into the court of chancery is a question which may properly arise on the distribution of that fund or on proper proceedings by the railroad company, but is not now before us.

For affirmance — Ti-ie Chancellor, Oi-iiee-Justice, Garrison, Swayze, Reed, Trenci-iard, Parker, Bergen, Minturn, Bogert, Vredenburgi-i, Vroom, Green, Gray", Dill — 15. For reversal — None.