
    In the Matter of the Application of The St. Lawrence & Adirondack Railroad Company, Resp’t, to Acquire Real Estate of Julia L. De Camp et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 9, 1892.)
    
    1. Condemnation pboceedings—Constitutional law.
    Section 3379 of the Code, giving the court power in condemnation proceedings to authorize the plaintiff, if in possession of the property sought to be condemned, to continue in possession, and to stay all actions against him on account thereof, upon his giving security, is constitutional.
    2. Same—Possession.
    Where the petitioner has come into possession in good faith without intending to commit a trespass, he will be allowed to remain in possession under § 3379 of the Code, upon his giving proper security.
    Appeal from an order made on the 13th day of February, 1892, in Oneida special term, which provides that upon depositing with the clerk of Herkimer county the sum of $5,000, subject in all respects to the order of the court, “to be held as security for the payment of the compensation which may be finally awarded to the defendants as owners or parties interested in said lands, and the costs of this proceeding, that the plaintiff, the said St. Lawrence & Adirondack Railroad Company, be authorized and allowed to continue in possession of the lands described in the petition herein and so sought to be condemned.”
    Among the papers recited in the order and read upon the motion is “the answer of the defendant Julia L. DeCamp, verified herein on the 10th day of February, 1892;” the order recites that-it “appearing to the satisfaction of the court that the plaintiff is in possession of the premises hereby sought to be condemned, it is hereby ordered and directed, etc.” On Movember 21, 1891, the St. Lawrence & Adirondack Railroad Company filed a map locating a route of its road; the road, as located, crossed township Mo. 7, in the town of Wilmurt, in the county of Herkimer, over lands described in the petition. December 12, 1891, plaintiff’s petition was prepared, in which it was stated, among other things, that the lands described and sought to be condemned were necessary for public use, viz.: for railroad purposes. And the petition also averred: “ That it is now in possession of the said described lands which are sought to be condemned in this proceeding, as will more fully appear in the annexed affidavit of Charles E. Snyder, verified on the 12th day of December, 1891, and to which your petitioner hereby refers and makes the same a part of this, his petition. That your petitioner is now in possession of the same under a defective title thereto, viz.: under the title of the Adirondack Timber & Mineral Company, who have an undivided interest in the lauds hereby sought to be condemned," and that the defendants above named are the other persons having undivided interests in the said described property, and liens thereon.” In the affidavit, so referred to of Snyder, after setting out the sources of title, it is. alleged “ that the plaintiff in this proceeding has acquired from the Adirondack Timber & Mineral Company all its right, title and interest of the said Adirondack Timber & Mineral Company in and to the lands sought to be condemned in this proceeding, and is now in possession of the same under the title of the said Adirondack Timber & Mineral Company.”
    And the affidavit further states : “ That the plaintiff has settled with the Adirondack Timber & Mineral Company for all its interest, right and title in and to the land sought to.be condemned in this proceeding, and that with the consent of the said Adirondack Timber & Mineral Company has, under title of the said Adirondack Timber & Mineral Company, gone into possession of the lands which are so sought to be condemned in this proceeding, and is now in possession thereof, with its servants, agents and contractors, and is busily engaged m the construction of its said railroad. And deponent further says that the plaintiff 1ms, for a long time, been in possession of the said described premises which are sought to be condemned in this proceeding, with the full knowledge of the agent of the defendants in charge of their interests in the said township, the said Walter DeCamp; and with the said knowledge and acquiescence of the defendant’s agent, has cut timber from the proposed right of way of plaintiff’s railroad over said township to a large extent.” Other affidavits were read in behalf of the plaintiff in support of the allegations, of the'petition.
    Mrs. De Camp’s answer, which was verified February 10, 1892,. contains denials of most of the allegations of the petition, and sets up that “ she is the owner, and sole owner, of the lands described by metes and bounds in the petition herein.” And in opposition to the motion, her affidavit, sworn to February 11th ; the affidavit of Scudder Todd, sworn to February 10th : and the affidavit of W. S. De Camp, sworn to February 18, 1892, were read, which contain denials of allegations of the petition and averments tending to support the allegations of the answer.
    
      C. D. Adams, for appl’ts; Charles E. Snyder for resp’t.
   Per Curiam

The discretion and power of the special term were exercised after considering the affidavits and allegations found in the papers. Upon those affidavits and papers the special term found, as is stated in its order, that it appeared to its satisfaction “ that the plaintiff- is in possession of the premises sought to be condemned.” It may be fairly assuiped that the special term readied the conclusion that the company was in possession under a color of claim or had acquired possession in good faith ; and that the special term was not of the opinion that the possession which the company asserted originated in a trespass known to have been such or that it was taken without color of authority. The case made before the special term therefore differs from the one appearing upon the papers in the' case reported in 133 N. Y., 270 ; 45 St. Rep., 207, between the same parties. Section 3379 of the Code of Civil Procedure. Under this section the court apparently exercised its discretion and allowed the plaintiff “to continue in possession ” upon depositing the sum of $5,000. It was assumed by this court in its decision made in February, 1892, of the case between these parties reported 133 N. Y., 270; 45 St. Rep., 207, that § 3379 was constitutional. We see no reason why we should not adhere to that conclusion. W e understand the court of appeals simply to have decided that where a railroad company has unlawfully entered upon land “ under the claim or pretense of right, in clefiance of the will of the owner, under no mistake or misapprehension and without color of authority ” that § 3379 does not apply to such a case. If the findings of the special term in the case now before us are upheld, as upon an examination of the papers before the special term we are inclined to think they should be, the decision so made by the court of appeals is not applicable to the case in hand.

In Cherokee Nation v. Kansas Railway Company, 135 U. S., in the opinion at page 659, it was said “ The constitution declares that private property shall not be taken ‘ for public use without just compensation.’ It does not require or provide that compensation shall he actually paid in advance of the occupancy of the land to be taken. But the owmer is entitled to reasonable, certain and adequate provision for obtaining compensation before its occupancy is disturbed ;” and in that case a deposit had been made in court to pay a compensation to the owner and it was held to be an adequate provision for the owner.

In 9 Colo., 190 ; 11 Pacific Rep., 85, it was held that a statute authorizing the court to permit a petitioner in condemnation proceedings to have temporary possession is not unconstitutional.

In Bloodgood v. Mohawk & Hudson River Railroad Company, 18 Wend., 9, it was held: “It is enough that such provision is made : it is not necessary that the damages or compensation should be actually ascertained and paid previous to the appropriation of the property.”

In Smith v. Helmer, 7 Barb., 426, Allen, J., in speaking for the general term of the fifth district, said : “ It is sufficient for this case that by the settled construction of the constitution which prohibits private property to be taken for public use without just compensation, actual compensation need not precede the appropriation, and that the law authorizing the reconstruction and alteration of the road in question provides for compensation, but does not make it a condition precedent to the entry upon and appropriation of premises for the purposes of the road.” According to the order brought before us authorizing a deposit in court of the sum of $5,000, a deposit was made “ subject in all respects to the order of the court to be held as security for the payment of the compensation which may be finally awarded to the defendants as owners or parties interested in said lands and the costs of this proceeding.” It appeared to us upon the argument that condemnation proceedings are now pending, and that the road of the petitioner is substantially completed across the premises in question, and that commissioners have been appointed to assess the damages sustained by the defendants. And from the views already expressed, it may be assumed that the rights and interests of the defendants are sufficiently guarded and protected by the order appealed from. We think it should remain.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., Martin and Merwin, JJ., concur.  