
    Hill et al. v. Mohawk and Hudson Railroad Co.
    
      Appraisement of lands taken for railroad.
    
    Where lands required for the construction of a railroad, are directed to be appisited, without deduction for benefits, the property must be appraised at its actual value; a reservation of certain easements and privileges to the owner, is unauthorized. .
    Hill v. Mohawk and Hudson Railroad Co., 5 Denio 206, affirmed.
    Appeal from the Supreme Court, sitting at Albany, where an appraisement of the land of John J. Hill and Adam Aldrich, which had been taken by the Mohawk and Hudson Railroad Company, under the act of 16th April 1838, had been set aside, on certiorari. (Reported below, 5 Denio 206.)
    The act under which the proceedings were had provided, that the appraisers should view the premises, and assess and certify the value thereof, and the damages the owners might sustain, by taking their lands, and by injury to buildings, in the construction of the railroad; without any deduction on account of any real or * 153 1 *suPPoseJ benefit which the owner might derive -* from the construction thereof; and upon payment of the amount assessed, the railroad company was to become the owner of the land in fee-simple.
    A vacant piece of ground belonging to Hill and Aldrich, on the west side of Broadway, in the city of Albany, was taken, and appraised at the sum of $1800, which sum was awarded to them, with the following stipulation in the certificate:
    “ This award is based on the supposition, and made on the condition, arid with the understanding, that Hill and Aldrich, the owners, are to be at liberty, at any time, to lay out and open a street on the north side of their lot, across said road, and to remove any fences or obstructions to such street, and also to drain under said road, provided, that the grade of said railroad is not aifected thereby, nor the running or operation of said road interfered with or impeded in any way.”
    On certiorari, directed to the clerk of Albany county, in whose office the record of the proceedings was filed, the supreme court set aside the inquisition and appraise ment; whereupon, the railroad company took this appeal.
    
      Reynolds, for the appellant.
    
      Pechham, for the respondents.
   *Gardine:b, J.

According to the section of the act under which the proceedings in this L case were taken (Laws 1838, p. 199), the corporation, on complying with the terms of the statute, were to "be deemed the owners of the land taken, in fee-simple.”

As the right to apply for the appointment of appraisers is made dependent upon the failure to obtain the land required, by agreement (§ 5), and as the proceedings, if regular, bind married women, infants, lunatics, and idiots (§ 10), the corporation must show, upon the face of the record, a substantial compliance with every requirement of the statute, and, in the act itself, an express authority to the appraisers for every exercise of power affecting the interest of the owner.

The petition of the railroad company is in the usual form, referring to the statute, and " describing the lands required for the purpose of the new road,” without any qualification or condition as to the interest therein to be acquired. They were entitled to a fee, by the 11th section above mentioned, if anything, subject to the right of passage by the original owners, according to the provisions of the 12th section, and could be compelled to take nothing less. The owners, on the other hand, had the corresponding right to be compensated for the interest thus taken without their consent. The 8th section, accordingly, declares, that “the appraisers shall assess the value of the land so proposed to be taken, and the damages the owners thereof may sustain by taking their lands, by injury, to buildings, and in the construction of such road, without any deduction on account of any real or supposed benefit which such owner may derive from the construction of such road.”

This is the power conferred upon the appraisers, and the whole of it. In their certificate, made in accordance with the 9th section, they state, “ the damages awarded to the said owners by the said appraisers are $1800. This award is based on the supposition, and made on *ihe cmditiori, and with the understanding, that J Hill and Aldrich, the owners, are to be at liberty, at any time, to open a street on the north side of their lot, across said road, and to remove any fences or obstructions to such street, and also to drain under said road, provided the grade and security of said road is not affected thereby.”

It is hardly necessary to affirm, that the appraisers had no authority to arbitrate between these parties. Their duties were defined by the 8th section, which I have quoted. In attempting to reserve privileges to the owners, by way of easement in the lands they were to appraise, they transcend their power, and their award was a nullity. It has never been suggested, that, the railroad company would be bound, ipso facto, by the award, without some subsequent act on their part affirmatory of its provisions. They claimed, as we have seen, the fee-simple; and the use to which they were to appropriate the land, involved the right to the exclusive possession, except, so far as it might be modified by the provisions of the 12th section. (5 Denio 259, 263.)

The award, however, when made, must conclude both, or neither, of the parties. The certificate, it is true, states, that the appraisers have assessed the value of the land, and the damages sustained by the owners, without any deduction on account of any real or supposed benefit which the owners might derive from the construction of the road. But this statement is consistent with the fact, that the appraisers deducted from the damages the full value of the privileges secured to the owners; for these easements were not any part of the real or supposed benefits resulting from the construction. The amount deducted we have no means of ascertaining; entire damages are assessed, without distinguishing by the return those awarded for the land, and the damages, if any, allowed for injuries to buildings, or by the construction of the road.

Cases may be imagined, in which the benefit to the owners, by a privilege of this kind, would exceed the value of the land taken, and where the property was divided by a ravine, or a highway, which the corporation proposed to fill up, or excavate *for the ^ ... ^ track of the road. If the construction in the manner proposed, was a benefit to the owner of the different parcels, he would obtain, under the statute, the value of the land taken, without anything more or .less. If, however, to these advantages should be added the right to open and continue a public highway across the road, the benefit thus derived might exceed the value of the land appropriated. And if this award can be sustained, the appraisers, by making such an easement the basis” of the award, would be justified in allowing mere nominal damages to the owner. This would be a mode of improving owners out of their lands, which is opposed to the whole spirit of the law.

It is said, that railroad corporations should be permitted to do as little injury as possible to lands not appropriated for the purpose of their road. This may be conceded; the plan of the road and the mode of its construction must always be before the appraisers, and enter into and modify the assessment of damages. If the grade is subsequently changed, to the injury of owners of land, they, of course, would be entitled to an additional compensation for the damages thus incurred. The advantage attempted to be conferred upon the appellants in this case, was not however incidental, but collateral to the plan of construction; it was a right to open a street and to drain under the road. Eights, which the owners must render available, but which the owners were at liberty to exercise or not, according to their pleasure. Privileges of this kind must depend upon the agreement of the parties; the appraisers have no color of authority in the premises; they could neither compel the corporation to make the grant, nor the owners to accept it. They might, with as much propriety, attempt to prescribe the speed with which the cars should be run across the lands, or require a warranty of title on the part of the owner, as a “ basis” and “ condition” of the award. The judgment of the supreme court should be affirmed.

*Ruggles, O. J.

(Dissenting). — The 8th section -* of the “ act concerning the Mohawk and Hudson Railroad Company,” passed the 16th April 1838, under which the lands were taken for the road, prescribes the duty of the appraisers in these words: “And the said appraisers shall assess the value of the land so proposed to be taken, and the damages the owners may sustain by taking their lands, by injury to buildings, and in the construction of such road, without any deduction on account of any real or supposed benefit which suck owner may derive from the construction of such road.

In appraising the land and damages under this act, the appraisers have two duties to perform, which are distinct in their nature, although both are to be done at the same time, and certified in one certificate. One of these duties is the appraisal of the value of the land; the other is the assessment of the damages which the owners may sustain, over and above the value of the land. The land is to be valued as if it were to be appropriated to any other purpose. The amount of damages to the owner from the construction of the road (over and above the value of the land) may be composed of various items, according to the circumstances of the case. The appraisers may allow damages, because the road when constructed will obstruct the view from the owner’s dwelling, and thus render it less desirable as a residence; or because it will interfere with his access to some portion of his adjacent lands, or to his ordinary place of business; or because the road will obstruct or divert the water-courses or the natural drainings of his meadows lying near it; or because the road, when made, will interfere with the improvement of his adjacent lands for some valuable use to which they are naturally adapted, and to which they might have been advantageously applied, if the road had not been made.

It is very obvious, that the amount of damages arising from these or other causes, may depend, in' a great degree, on the manner in which the road is to be constructed, and upon the extent to which it deprives the owner of the advantageous use and enjoyment of his adjacent lands. The appraisers cannot *adjust f the amount of compensation to the extent of the *- injury, without first knowing the plan on which the road is to be made, and the rights and privileges which are to be reserved to the owner, to enable him to continue in the beneficial enjoyment of his adjoining property. Whether the road interferes with the owner’s convenient access to his other lands, or to his place of business, may depend on the construction of a bridge or a viaduct, by which it may be easily and safely crossed. Whether it will obstruct the view from the owner’s dwelling may depend on the elevation of the grade. If there be reason to apprehend that the drainage of the owner's adjacent lands will be obstructed, that difficulty may be obviated, partially or wholly, by the construction of a culvert, or by a right reserved to the owner to cause a drain to be made under the road; or if the owner could sell his adjacent lands to a greater advantage, by making a street across the site of the road, the injury he might otherwise sustain by the road in that respect, might be avoided or diminished, by allowing the owner to lay out and open the street, and to remove all obstructions in the way of its use across the railroad.

The railroad company have the right, most undoubtedly, of constructing their road in such a manner as to do the least injury to the land-owner, and to reserve to him such rights and privileges in the land taken, as are consistent with their use of that land, and his use of the adjacent lands. And if the plan of the road is exhibited and submitted to the appraisers, and the appraisement is founded on such plan, the company is bound and may be compelled to construct the road accordingly. The plan of the road, or the description of the mode in which it is to be constructed, and the rights reserved to the land-owner, may very properly be embodied in the award of the appraisers for the security of the landowner. This seems to have been done in the case under consideration, and the privilege of laying out the street across the railroad, of removing obstructions, of draining under the road, are not at all inconsistent with the fact previously stated, that the appraisal of the land and the assessment of the damages were made, without any deduction on *account of any real or supposed -* benefit which the land-owners might derive from the construction of the road.

Let us suppose, that the construction of the railroad would have prevented the opening of the street, unless by the assent of the company, and the allowance of the privileges mentioned in the award, and that the land-owners would thereby have been deprived of the benefit of the street, and of the improved value of the adjacent lands, which the opening of the street would have occasioned. Under these circumstances, if the company could construct their road, in such manner and upon such terms, as not to prevent the opening of the street, and not to deprive the land-owners of any advantage arising therefrom, they were clearly right in doing so. The landowners have not a right to demand that the road should be made in such manner as to do them the most harm, for the purpose of enabling them to recover the highest damages.

The return to the certiorari states expressly that the appraisers awarded to the owners the value of the land, and the damages they would sustain by taking the same, and in the construction of the road, “ without any deduction on account of any real or supposed benefit which the said owners might derive from the construction of the road.” The return cannot be contradicted here; it is conclusive, to show that the privileges which the award secures to the land-owners, were not allowed as any part of the compensation for the land, nor as any part of the real or supposed benefit which the owners might derive from the road; nor as a compensation for damages sustained. There is no ground for questioning the truth of the return in this respect, if we were allowed to question it at all. It is evident, that the privileges were allowed for the purpose of preventing the land-owners from sustaining damages, of to diminish their amount; in other words, to secure to the land-owners, after the railroad shall have been made, the enjoyment of part or all the advantages in the use of their adjacent lands which they would have had, if the railroad had not been made. This is entirely cqnsistent with the truth ^ of the return, with the *spirit of the statute, -* with public policy, and with justice and equity.

It has been said, that the corporation cannot compel the land-owner to accept the benefit of' the privileges thus proffered. That is true; and so, if the corporation should construct a safe and convenient passage-way across their road, or an arched way under it, for the land-owner’s use, they could not compel him to accept the' benefit; but it would be a great defect in the judgment of the appraisers, in such case, to award him damages for crossing at a greater distance, or at a more inconvenient place.

The error of the supreme court appears to me to consist in having assumed (contrary to the fact expressly stated in the award) that the full amount of damages was not allowed to the land-owners. The effect of the decision was, to require the company to pay damages for depriving the land-owners of advantages in the use of their adjacent lands, of which they whre not, in fact, deprived by the construction of the road, on conditions which the company had the right to impose and did impose on .themselves; and if the principle on which the judgment is affirmed be carried out, it will require these companies and the people of this state, whenever they have occasion to take private property for public use, to pay damages not sustained, or which may be avoided and prevented by conditions and stipulations annexed to the appropriation.

It is a mistake, to say that it appears from the award, that the value of the easements allowed to the landowners has been deducted from the damages sustained by the construction of the road. It might as well be said, that when • a railroad company have the damages assessed, on condition that they shall construct a culvert or an arched way under the road, for the benefit and convenience of the land-owner, that the value of these [ *162 are deducted from the damages. That these easements may and ought to affect the amount of damages to be assessed, no one can deny: the assessment is made with reference to the injurious effect which the construction of the road, with these easements included, is to have upon the interest of the land-owner; but no one can truly assert that their value is deducted from the *damages sustained. If the passage-way is as convenient, after the making of the road as before, the owner has sustained no damage from its obstruction; and so, in relation to the privilege of making the street across the railroad in the present case, if it can be as well done, after-the railroad is made, as before, the land-owner has sustained no damage from that cause, and there is nothing therefore to be deducted; or, if the expense of the opening street is increased, or its advantages diminished, in some degree, by the railroad, the damage is to be graduated accordingly. It is on this principle that the appraisers appear to have made their assessment, and I am unable to perceive any error in it. _

The easements and privileges reserved to the landowners do not affect the seizure of the lands by the corporation, after they have been appraised and paid for. (Whitbeck v. Cook, 15 Johns. 483.) The statute itself gives to each land-owner the right of passing across the railroad for farming and other necessary purposes (§ 12). This is, of itself, an easement, and is not regarded by the act as a disturbance of the service conferred on the company by the preceding section. The estate which the company acquire is a fee-simple, subject to the easements.

In the opinion delivered in the court below, it is stated, that “the object in reserving an easement to the original owners must have been, to procure its valuation at a reduced sum, and thus to save expense to the corporation.” This appears to me to be erroneous. The object was not to obtain the land taken at a reduced valuation, and the appraisers certify that they have appraised it at its full value. The object was, to avoid the occasioning of any unnecessary damage to the owner, consequent upon the taking of his land at its full value; and I can find nothing in the statute to prevent their doing so. It is not to be believed, that the legislature intended to compel the company, unnecessarily and against their own will, to take away from the owner the privilege of laying out a street across the railroad, and to pay damage for depriving him of a right which they did not want and could not acquire to themselves, and which they were willing to let him retain.

* 1 fit? i ^The appraisers appear to me to have acted -* upon the true construction of the statute, and I have deemed it proper to state my reasons for dissenting from -the decision of my brethren in setting it aside, because it seems to me, to lead to very inconvenient and inequitable practical consequences.

Judgment affirmed.  