
    Harriet Beal, App’lt, v. The New York Central and Hudson River R. R. Company, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1886.)
    
    1. Railroad company—Taking land by—Eminent domain—What teclee in railroad under Laws 1833, chap. 294.
    The Utica and Schenectady Railroad ■ Company was incorporated in. 1835, under chapter 294, Laws of 1833, which, among other things, provided that “ all lands or real estate thus entered, taken possession of or used by the said corporation, which are not donations, shall be purchased by the owner or owners of the same, and at a price to be mutually agreed upon between them.” In case of disagreement of price, “ the land should be acquired by resort to certain proceedings, and that the award of commissioners appointed in such proceedings should be “¿what they shall deem to be the full value of the same,” and that the corporation should pay such, value to the owner, and that upon and after such payment the corporation shall be possessed of all the lands for the purposes of said road, and may enter upon and take possession and use the same.” At the time the lands- ' in question were taken by the Utica and Schenectady Railroad Company,' plaintiff, who then owned the lands, was a minor, and recourse was had to-proceedings under its charter to acquire the lands, which resulted in the entry of the final decree required by the said act, which provided that upon recording of the said decree, the corporation should be possessed of the lands-for the purposes of the said road, and that it might enter upon and take-possession of and use the same. The corporate existence of the company was fixed by the charter at fifty years, which term expired April 28, 1883. The railroad, after having entered into possession of the land, was, pursuant to an act of the legislature, legally consolidated with other railroad companies into the present corporation known as the New York Central and Hudson River Railroad Company, transferring all its rights, franchises and interests to and vesting them in the new company, it being-provided expressly in the act that the title and real estate acquired by the old company should not be deemed to revert or be impaired by means of such act of consolidation, or anything relating thereto. In an action of ejectment brought by plaintiff to recover the lands: 3eld, that the action could not be maintained, that the proceedings had under the act of 1833 transferred the fee to this land and not a mere easement therein to the company; that this being so, the expiration of the time limited for its corporate ex'stence would not, without subsequent legislation, work areverter of the title to the plaintiff.
    
      2. Same—Power of legislature to extend the term of its corporate EXISTENCE AND TO AUTHORIZE ITS CONSOLIDATION WITH OTHER COMPANIES
    By the act of 1833, the power to at any time alter, modify or repeal the act of incorporation was expressly reserved to the legislature: Reid, that that body could extend the period of its corporate existence, or authorize its consolidation with other corporations, and authorize the successors to receive and hold its property and effects, including the premises in question, and to require and authorize them to be possessed by such successors for the purposes of a. railroad and its use of the same.
    Appeal from a judgment entered in Oneida county dismissing plaintiff’s complaint. The case was tried at the Oneida circuit without a jury, and findings of fact and conclusions of law made, upon which the judgment was based.
    The act under which the Utica and Schenectady Bailroad Co. was incorporated was passed on the 29th day of April, 1833. By one of the clauses of the act the corporate existence was limited to fifty years. This action was commenced after April 28th, 1883.
    The land in question belonged to the plaintiff in 1835 and up to May 9th, 1836, she being then a minor when proceedings were taken under its charter to acquire the land, and the amount awarded by the commissioners was paid to her guardian.
    The Utica and Schenectady Bailroad Co. was duly consolidated with another railroad under the act passed April 2, 1853, forming the Yew York Central Bailroad Co., and by authority of said act all the rights of property real and personal belonging to the U. and S. Bailroad were transferred and vested in the new company formed. .
    This new company under the authority of the act passed May 20, 1869, was consolidated with the Hudson Biver Bailroad Company under the name of the Hew York Central and Hudson Biver Bailroad Company, and by authority of this act the title to the land in question was claimed to be transferred to and vested in the N„ Y. Cent, and H. B. B. B. Co.
    
      C. W. White, for app’lt; D. M. K. Johnson, for resp’t.
   Hardest, P. J.

Whether the plaintiff is entitled to or interested in the lands described in the complaint depends upon the construction of chapter 294 of the Laws of 1833, and the force to be given to the proceedings had under that chapter to condemn the lands in question, or in other words, did the proceedings had operate to the transfer from the plaintiff the fee or a mere easement in the premises, limited to the period expiring on the 28th day of April, 1883 ? 2 Wood Railroad Law, 764.

Section 7 of chapter 294 of the Laws of 1833, authorizes - the corporation, first, to purchase, receive and hold such real estate as may be necessary and convenient in accomplishing the object for which this corporation is granted; second, it also authorized the corporation’s agents, surveyors and engineers to enter upon such route, place or places to be designated; and, third, it authorizes “the said corporation to enter upon and take possession and use all such lands and real estate as may be indispensable for the construction and maintenance of said double railroad. ” ** * It also authorizes the corporation, fourth, to “ receive, hold and take all such voluntary grants and donations of land and real estate as shall be made to the said corporation to aid in the construction, maintenance and accommodation of said railroad or ways; but all lands or real estate thus entered, taken possession of and used by the said corporation, which are not donations, shall be purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them; in case of a disagreement in price, and before the making of any portion of the road upon said land, the directors of said corporation may present their petition to the chancellor, setting forth the necessity of such lands for making said railroad or ways, and of the attempt and failure to purchase the same, with the name and residence of the owner and the reason why the purchase cannot be made. And the chancellor shall direct such notice to the owner or owners of such lands, as he shall deem proper and reasonable, of the time and place of hearing the parties: and upon proof of due service of such notice, and upon hearing the parties, the chancellor shall appoint three competent and disinterested freeholders of the county in which the lands are situated to be commissioners to appraise said lands. The said commissioners shall appraise said lands, and shall award to the owner or owners thereof what they have shall deem to be the full value of the same; and shall be authorized to examine the lands, to administer oaths and hear testimony; and shall make their appraisement in writing without delay, under their hands, with a minute and accurate description of the land appraised with a map thereof, and shall report the fíame, with the testimony taken, to the court of chancery. The chancellor shall examine the report and shall hear the parties, if desired, and may increase or diminish the amount awarded if he shall be satisfied injustice has been done. Upon proof to the chancellor, within thirty days after his determination, of payment to the owner or of the depositing to the credit of the owner in such bank as the said chancellor shall direct of the amount of such appraisement, and the payment of all expenses attending it,, the said, chancellor shall make a decree or order particularly describing the lands and reciting the appraisement, and the mode of making it, and all other facts necessary to a compliance of this section of the act. And when the said decree or order shall be recorded in the office of the clerk of the county in which the land is situated, whose duty it shall be to record the same, the said corporation shall be possessed of all the lands for the purpose of the said road, and may enter upon and take possession and use the same.”

In ascertaining the proper construction to be given to the section under consideration, attention must be given to the words, viz.: “But all lands or real estate thus entered, taken possession of and used by the said corporation, which are not donations, shall be purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them.” This language is broad and comprehensive, apparently used for the purpose of including all lands which the road should acquire otherwise than by “donations.” It seems to relate not only to lands as to which there should be a voluntary conveyance, but to lands which should be acquired by resort to proceedings under the principle of eminent domain. The following language bears upon the construction which we have intimated should be given to the sentence just quoted, viz.: “In the case of a disagreement of price,” the directors were authorized to present their petition to the chancellor, “setting forth the necessity of such lands for making said railroad or ways, and of the attempt and failure to purchase the same, with the name and residence of the owner.” Thereupon the chancellor was authorized to appoint commissioners “to appraise said lands.” Then follows a rule for the appraisal, commanding its commissioners to “appraise said lands, and shall award to the owner or owners thereof, what they shall deem to be the full value of the same.” The commissioners are then directed to make an appraisement in writing, “with a minute and accurate description of the land appraised.”

The section then provides that “upon proof to the chancellor * * * of payment to the owner, the chancellor shall make a decree particularly describing the lands and reciting the appraisement, the mode of making it, and all other facts necessary to a compliance with this section.” Then follows a provision that when the decree shall be recorded, “the said corporation shall be possessed of all the lands, for the purposes of said road, and may enter upon and take possession and use the same.” It must be borne in mind that the language which we have quoted refers to the lands unqualifiedly. No words are used indicative of an attempt to authorize the taking of anything less than the fee. The concluding language of the section was probably inserted for the purpose of declaring that the company should be the owner of the lands.

The word ‘.‘possessed ” seems to be used as the equivalent of the word “owner.” If we thus read "the sentence, the statute declares that the company shall be the owner “of all the lands upon payment of the price” or “appraisement ” of the lands fixed by the commissioners. As we have already seen, in the early part of the section, there was an intent evinced by the language used, that all lands should be purchased (except those donated), first, at a price to be mutually agreed upon; and, second, that in case of a disagreement of price, that the price should be named by commissioners. Some stress is laid by the appellant upon the words found at the close of the section, viz.: “Said corporation shall be possessed of all the lands for the purposes of said road and may enter upon and take possession and use the same.”

We are not able to construe these words as indicative of an attempt to limit the estate or of the title which should pass to the corporation under the proceedings. It may be conceded that those words required the corporation, or its successors, to use the land for railroad purposes. So far as public policy is concerned, the language may be regarded as sufficient to require the corporation created to devote the premises thus acquired to no other use or purpese.

It is not claimed, upon the facts before us, that the corporation thus created, or its successors, have devoted the lands to any other purpose than that of maintaining and operating a railroad thereon. If we are right in assuming that the fee passed under the proceedings to the corporation, then it possessed the right to use and occupy the preifiises in question for the purpose of erecting, building or making a single, double or quadruple railroad or way, and by the charter it also possessed “the right of using the same in the manner * * * directed ” in the act “ for and during the term of fifty years.” It was thus permitted to operate its road, by express permission of the legislature, for the period of fifty years.' But by the nineteenth section of the act it was expressly declared that the legislature may, at any time, alter, modify or repeal the act. _ So far, therefore, as the act is concerned, the act in question gave the corporation created by it certain powers. These powers were to be enjoyed by it for the period of fifty years. It was competent for the legislature to extend the period to a corporation thus created, or to so modify the charter, alter or amend it, that in conjunction with one or more other corporations, the same privileges might be exercised. Eut if we are right in assuming that the corporation received the same title or interest by virtue of the proceedings, which it acquired in lands where there was a mutual agreement as to price, the lapse of time without subsequent legislation would not work a reverter of the title to the premises to the plaintiff.

In Heath v. Barmore (50 N. Y., 302) it is held, viz. “The rule of the common law, that real estate held by a corporation at the time of its dissolution reverts to the grantor, does not prevail in this state in respect to stock corporations. Where lands are conveyed absolutely to a corporation having stockholders, no reversion or possibility of reverter remains in the grantor.”

In such case it seems to be settled that property acquired by purchase may be conveyed to a subsequent purchaser “discharged of any right of reverter in the grantor or his heirs.” Kenney v. Wallace, 24 Hun, 479; Nicoll v. Erie Railway, 12 Barb., 460; S. C., affirmed, 12 N. Y., 121.

It was held in The Brooklyn Park Commissioners v. Armstrong (45 N. Y., 234) that “in the exercise of the right of eminent domain, the legislature are the sole judges to what extent the public use requires the extinguishment of the owner’s title, and their power in this respect (subject always to the necessity of making full compensation) is not limited by any constitutional restriction. The nature of the right acquired by the public in such cases, whether an absolute title to, or a mere easement in, the lands, depends, therefore, upon the intention of the legislature, to be deduced from the act authorizing the condemnation.”

Judge Folger says in that case, at page 241: “ The terms employed in the fifth section, descriptive of what is to be acquired and paid for, are broad, and would seem to include all of the proprietary nature in the lands, or connected with or growing out of them. And for relinquishing it all, the owner is to be paid the full value of it all, without deduction. It seems inconsistent, that if the legislature intended that the city should take but an easement, it should be required to pay the value of the lands, and of all hereditaments and appurtenances, and also the other loss and damage to the owner from the taking, without deduction for benefit. This would be to exact the price of the fee for taking a user only. It could not have been intended that the owner should receive ftill value, and yet have left to him a reversionary interest.” Haldeman v. The Pennsylvania Cent R. R. Co., 50 Penn. St. R., 425; Cooley on Limitation of Legislative Power, 552.

This case was referred to by Andrews, J., in Washington Cemetery v. Prospect Park and Coney Island R. R. Co. (68 N. Y., 595), with approbation. In the latter case the learned judge refers to the statute of 1873, then under con sideration, which provided for the appointment of commissioners “to estimate the value of the lands and premises required to be taken for said avenue, the damages to be sustained by any person interested therein, by reason of such taking, and the benefits which will be derived by owners of the land within the district of assessment from the opening-of the avenue,” and he adds: “The land is taken for an avenue, and this purpose is fully satisfied by the taking of an easement in the land for the street or highway.” We think that case differs from the one now before us. Brooklyn Park Commissioners v. Armstrong, supra, was referred to and followed to in Gearty v. The Mayor, 49 How., 34.

In Heyward v. The Mayor (7 N. Y., 314), it was declared that the legislature has power to authorize the acquisition of the fee in lands of private persons, required for public uses, on payment of just compensation, and that when so acquired, no reversionary estate remains; and that where the public exigencies require lands to be converted to some other purpose, they may be so converted. Near the close of the opinion in that case, Welles, J., says: “A man is called upon to give up and part with his property for the public use. It is reasonable that he should do so," and the law requires it of him;, a full indemnity is all that he can ask in return, and should satisfy him. Having received it, a demand for anything beyond must be founded upon a rule anything but equitable.”

In Story v. The New York Elevated R. R. Co. (90 N. Y., 172), Tracy, J., says: “The proceedings by which land is acquired by the exercise of the right of eminent domain amount to a statutory conveyance of the same to the public or the corporation, and there is no distinction between such a conveyance and a voluntary conveyance made for a public use.”

When such proceedings are instituted, Blackstone says, viz: “The public is considered as an individual treating with an individual for exchange. All that the legislature does is to oblige the owner to alienate his possessions at a reasonable price, and even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature can perform.” 1 Black. Com., 139.

It was competent for the legislature to enact, as it did in section 7 of the act of 1833, that “ all lands or real estate thus entered upon, taken possession of, or used by the said corporation, which are not donations, shall be purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them, in case of disagreement of price,” and to provide, in case of such disagreement, that the award of commissioners should be “what they shall deem to be the full value of the same,” and that the corporation should pay such value to the owner, and that upon and after such payment the corporation should be deemed possessed of and to be the owner of the property required.

If we are right in the conclusion that the plaintiff parted with her whole title to the property when she received compensation to the extent of the full value thereof under the proceedings had, and that the corporation acquired for a public use, the title and ownership of the property, it follows that the plaintiff had no title to, or right to the possession of, the premises in 1888, or at the commencement of this action.

It was competent for the legislature to amend the act of 1833, as in section 19 thereof it had reserved the power to do so, and it was within the power of the legislature, with the assent of such corporation, to authorize its successors to receive and hold its property and effects, including the premises in question, and to require and authorize the premises to be possessed “ for the purpose of a railroad and its use of the same.” These views lead to the conclusion that the decision at the circuit should be sustained. Terry v. N. Y. C. and H. R. R. R. Co., 67 How., 439; opinion by Haight, J.

Boardman, J., concurred in result.

Follett, J.

Without expressing an opinion upon the question as to whether the Utica and Schenectady Railroad Company acquired an absolute fee, which could be conveyed and the land converted to other uses, I am of the opinion that the corporation acquired the right to use the land for railroad purposes so long as it, or any successor corporation is authorized to and does use the land for such purpose. Upon this ground, I vote for affirming the judgment, with costs.

Judgment affirmed, with costs.  