
    Blodgett vs. The Utica and Black River Railroad Company.
    A railroad company has no right, whatever, to enter upon, and use and occupy, the land of an individual, for the purpose of constructing its road; or to take and appropriate the timber thereon, against the consent of the owner; before having ascertained the compensation to which such owner is entitled, under the constitution, and the payment thereof. And no provision of the general railroad act can be construed as purporting to give such right.
    For such an unauthorized entry, occupation and cutting down and conversion of timber, a right of action accrues to the owner.
    Such a right of action is not discharged, or defeated, by proceedings commenced a year after it had accrued, to have the land appraised with a view to the subsequent acquisition of the title, and the payment and acceptance of the damages awarded therein.
    The general railroad act furnishes no foundation for the claim that the commissioners of appraisal can, as such, take into consideration, and award damages for, trespasses previously committed by the railroad company upon the property of the owner of the land it desires to appropriate, or for causes of action previously existing in his behalf.
    
      The act declares that the commissioners are to be applied for, to appraise the compensation to be made to the owner, for the real estate “ proposed to be taken for the purposes of the company.” And the only taking for the purposes of the company, which is, or can be, authorized by the statute, is, that which is to succeed the paying or securing of the compensation; not an unauthorized taking which has preceded the performance of this condition.
    If a railroad company sees fit to enter upon, and take possession of, and use and appropriate, the lands and growing crops and timber of a citizen, against his consent, and before having acquired the right to do so by the exercise of the delegated right of eminent domain, it does so under the same liabilities and responsibility for its acts which would be incurred by any private individual who should do the same acts.
    A defendant’s exceptions have no place in a bill of exceptions made by the plaintiff for the purpose of setting aside a nonsuit; and should be stricken out, on settlement.
    BILL of exceptions taken on a nonsuit at the Lewis county circuit, and ordered to the General Term in the first instance.
    
      Cornelius E. Stephens, for the plaintiff.
    ' I. The general railroad act (Laws of 1850, ch. 140, § 16; amended Laws of 1854, ch. 282, § 3; amended Laws of 1864, ch. 582, § 4) defined the duties of the commissioners: “They shall view the premises described in the petition, and hear the proof and allegations of the parties,” * * * and “ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them.” They, are not, like other tribunals, to be governed exclusively by the evidence. They are required to view the premises, as well as to hear the proofs and allegations of the parties. (Troy & Boston R. R. Co. v. Lee, 13 Barb. 169. Matter of Utica &c. R. R. Co. 56 id. 456.) The petition must show that the company has not been able to acquire title to the land. (Laws 1850, ch. 140, § 14. Matter of N. Y. Cent. R. R. Co. 20 Barb. 419.) The statute does not give the owner power to take any action to have his compensation appraised. 1. The statute does not give the company any right to use or occupy the land until the appraisal has been made and confirmed, and paid. The owner may sue for use and occupation, or in trespass, before award is made. (Bloodgood v. Mohawk &c. R. R. Co. 18 Wend. 9, 59.) 2. The courts will restrain by injunction a railroad company from 'using or occupying land until' compensation has been assessed and paid. (Williams v. N. Y. Cent. R. R. Co. 16 N. Y. 97. Craig v. Rochester City R. R. Co. 39 Barb. 494. Same case, 39 N. Y. 404.) 3. The railroad company has no right to the land, nor the owner to the compensation awarded, until the report has been confirmed. (Hudson R. R. Co. v. Outwater, 3 Sandf. 689. Crowner v. Watertown &c. R. R. Co. 9 How. Pr. 457.) 4. The only right given to the railroad company to enter upon the owner’s land prior to assessment of compensa- -- tion, is to make preliminary survey, “but subject to responsibility for all damages which shall be done thereto.” (Laws 1850, ch. 140, § 28, subd. 1. Polly v. Saratoga &c. R. R. Co. 9 Barb. 449.)
    II. Acquiring title by a railroad is a special proceeding. (N. Y. Cent. R. R. Co. v. Marvin, 11 N. Y. 276.) In a statutory proceeding, the statute must be strictly followed. As the statute contemplates, and the cases above cited hold, that, for use and occupation before assessment, the owner has a right of action, and that the company may not occupy before the assessment is made, confirmed and paid, it necessarily follows that the statute intends that the commissioners “shall view the premises,” and award compensation, not for the former use of the land, but for the land itself as it exists at the time of the appraisal.
    III. The commissioners award compensation for the land to be taken, not for the land already taken, because the railroad company has no right to be on the land. 1. The ruling at the circuit cannot be sustained on the theory that the award was for the land as of the time it was occupied. The proceedings were to acquire title—to acquire without the consent of the owner, the right to use the land in the future for railroad purposes. 2. The evidence before the commissioners shows that neither party tried to litigate .any such question before them. This action was then pending.
    IV. The plaintiff’s cause of action had accrued before the appraisal was had, and it was not in the power of a statutory tribunal, created for a specific purpose, to cancel, liquidate or divest the plaintiff’s claim, even if evidence had been given upon that subject. The commissioners had no original jurisdiction. To maintain the ruling at the circuit is to say: Because the owner is awarded compensation for the land then taken, he shall not recover for the use before it was taken. The proceeding was a compulsory sale to. the defendant, a substitute for a voluntary sale. If a man takes my land by conveyance, is my prior cause of action for his use of my land, and for timber cut on the same land, merged in the conveyance ?
    V. The reported cases in this State, where the State itself appropriated land for canal purposes, have no application, because the owner could file his claim and have his damages assessed by the canal appraisers ; a mode is provided for him to obtain compensation.
    
      c. D. Adams, for the defendant.
    The road was located and staked out. The timber cut was within the boundary of the location. It was cut and used in prosecuting the Building of the road. There is no evidence that the entry and occupation and work was against the plaintiff’s consent. The complaint expressly waives any claim for a tortious entry, and claims for use and occupation, and timber sold. The defendant offered to show that Before the entry was made or work done, there was an agreement between the parties that the defendant might enter and work, and if the parties failed to agree on the subject of compensation there should be an appraisal afterwards, under the railroad law, to include everything. This, on the plaintiff’s objection, was ruled out. The defendant also offered to show that at the appraisal the parties agreed that compensation should be made as of the time of the entry. On the plaintiff’s objection this also was ruled out. The appraisal and the evidence taken before the commissioners show that both parties went back to the time of the entry, and intended to, and did, submit the property as timber land, and the commissioners passed upon it as such. The commissioners are appointed to “ascertain and appraise the compensation to be made to the owners interested in the real estate proposed to be taken in such county for the purposes of the company.” (Laws 1851, ch 140, § 15. Amended Laws 1854, ch. 282, § 2.) The real estate proposed to be taken must be stated and described in the petition. (Laws 1850, ch. 140, § 14.) The petition refers to it as it was at the time of the location. The .commissioners, at the appraisal, after viewing the premises and hearing the proofs and allegations of the parties, are to “ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them.” The commissioners are not confined to the bare value of the land, on the day of the appraisal or service of the petition. They are to take into account, and consider and give compensation for, all things that have resulted or may result from the taking and use of the roadway, and constructing and operating of the road. They are to determine the compensation which ought justly to be made. This construction has been put on the statute in several cases. (Matter of Utica, C. & S. R. R. Co. 56 Barb. 456. Syracuse & C. V Talley R. R. Co. v. Armstrong, 4th Dep. Gen. Tr.) The evidence taken by the commissioners is returned and fded with their report and becomes a part of the record. (R. R. Act, 5 Laws, 298.) The commissioners saw ad this strip where the timber had been cut, the standing timber of the same character on either side, and heard evidence as to the value of the land as timber land, before any had been cut, and knew and understood the parties expected they would appraise it as timber land; to give just compensation-they should do so. It should be presumed they did their duty in this respect. If it were necessary to show what the defendant offered on the trial, its exclusion on the plaintiff’s objection precludes him from now saying it was not proved.
   By the Court, Talcott, J.

The plaintiff complains that the defendant entered upon his land, described ih the complaint, in July, 1870, and used and occupied the same until November, 1871, and while so in the occupation thereof cut and used, in the construction of its road, a large quantity of timber standing and growing upon the land ; and the plaintiff claims to recover as damages the value of such timber and the use of the premises. Evidence was given on the part of the plaintiff tending to establish his case.

The defendant, by way of defence, proved the commencement of proceedings in its behalf, for the purpose of acquiring title to the premises in question, under the general railroad act, by appraisal; that the land had been appraised, and the compensation awarded by the commissioners had been paid to and accepted by the plaintiff. These proceedings were not instituted till July, 1871, about a year after the entry by the defendant and the doing of the acts complained of by the plaintiff, and the compensation awarded was not paid till sometime after the commencement of the action. The judge, at nisi prius, ruled that the proceedings and payment constituted a bar to the action, and ordered that the plaintiff be nonsuited. The plaintiff now moves for a new trial on the exception taken to such ruling. We think the ruling excepted to was erroneous. For what purpose the company entered on the land, and whether after the filing of a map locating their road across the lands in question, does not appear, except as it seems to have been assumed on the trial that a map locating the defendant’s road, and embracing the lands in question had been duly filed, and that the defendant entered upon the land and did the acts complained of, in the process of constructing its' road. The general railroad act, (Laws of 1850, ch. 140, § 28,) authorizes the entry upon private property for the purposes of a preliminary survey and examination, but subject, however, to responsibility for all damages occasioned thereby. The 21st section applies to cases where there has been an attempt to acquire title under the provisions of the act, but for some reason the title thus acquired proves to be defective ; in such case the statute undertakes to authorize an entry, or the retaining of possession, if an entry has already been made. But in such case actions against the company, for the acts done under the defective title, can only be, stayed by the payment into court of, or giving approved security for, a sum sufficient to meet the claim for compensation. With these exceptions we find and have been referred to no provisions of the act which purport to authorize a railroad company to use private property against the consent of the owner, except by going through the process prescribed by the act, to obtain the, title thereto. It will scarcely be contended that the act vests any title or right of entry in the.railroad company, with the exceptions pointed out, before the payment of the compensation secured by the constitution; much less before any proceedings have been commenced tending to the payment or security of such compensation. The general railroad act was passed after the decision by the court of errors of a case which attracted universal attention, and evidently in view of’ the questions which had been settled in that case, namely, the case of Blood-good v. The Mohawk &c. Railroad Co., (18 Wend. 9.)

In that case, all the opinions delivered concurred in the view that an ,act of the legislature which should authorize a corporation to enter upon and use the lands of a private person, against his consent, (beyond a mere entry for survey and examination,) before having paid the compensation secured by the constitution, would be unconstitutional and void. The chancellor said, in that case: “If the true construction of this charter was such as is contended for by the defendant’s counsel, I should hold that the provision which authorized the appropriation of the plaintiff’s property to the use of the corporation, before the damages had been ascertained and paid, was unconstitutional and void.” The other opinions in the case are equally emphatic, on this point. It is clear, therefore, that the defendant had no right whatever to enter upon and use and occupy the land in . question for the purpose of constructing its road, or to take and appropriate the timber thereon against the consent of the plaintiff, before having ascertained the compensation to which the plaintiff was entitled under the constitution, and the payment thereof; and no provision of the act in question can be construed as purporting to give such right. It is also clear, that for such unauthorized entry, occupation and cutting down and conversion of the timber, a right of action accrued .to the plaintiff.

Was this right of action discharged, or defeated, by the proceedings commenced a year after it had accrued, to have the land appraised with a view to the subsequent acquisition of the title? We find no authority for this idea in the statute, and know of no principle upon which it can be maintained. The act furnishes no foundation for the claim that the commissioners of appraisal can, as such, take into consideration, and award damages for trespasses previously committed by the railroad company upon the property of the owner of the land they desire to appropriate, or causes of action previously existing in his behalf. The commissioners are to be applied for, as the act declares, to appraise the compensation to be made to the owner for the real estate “proposed to be taken for the purposes of the company.”

The only taking for the purposes of the company which is or can be authorized by the statute is, as we have seen, that which is to succeed the paying or securing of the compensation; not an unauthorized taking which has preceded the performance of this condition. To say that the corporation may first take and use the land and afterwards have the compensation ascertained and paid, is to hold that the statute does precisely that which, in the case referred to, it is held the legislature has no power to do. It probably could not be held to be an exercise of the right of eminent domain to undertake to authorize an appraisal of the damages a party „ may be entitled to recover against a railroad corporation, and the payment of the amount awarded in satisfaction thereof. It is difficult to see what public use or purpose could be subserved thereby. At all events, the act in question does not purport to do any such thing. It only attempts to condemn the real estate for the public use, upon payment of the compensation required by the constitution.

If a railroad company^ impelled by its interests or exigencies, sees fit to enter upon and take possession of, and use and appropriate, the lands and growing crops and timber, of a citizen, against Ms consent, and before having acquired the right to do so by the exercise of the delegated right of eminent domain, they do so under the same liabilities and responsibility for their acts which would be incurred by any private individual who should do the same acts.

[Fourth Department, General Term, at Rochester,

April 1, 1873.

Mullin, Talcott and E. D. Smith, Justices.]

The bill of exceptions contains several exceptions taken by the defendant, to the offers of the defendant to show that the entry and use was by license, and that the damages were submitted to the arbitrament of the commissioners, &c. We do not consider any of the questions which might have been raised by the defendant upon these exceptions. This is the plaintiff’s bill of exceptions, made for the purpose of setting aside the nonsuit. The defendant’s exceptions have no place in the bill, and should have been stricken out, on settlement.

Considering the nonsuit erroneous for the reasons above stated, a new trial is ordered; with costs to abide the event.  