Barre R. Co. v. Montpelier & W. R. R. Co.

• Decision Date: 30 May 1889
• Court: Vermont Supreme Court
• Parties: BARRE R. CO. v. MONTPELIER & W. R. R. Co. SAME v. GRANITE R. CO. GRANITE R. Co. v. BARRE R. CO.

17 A. 923

61 Vt. 1

BARRE R. CO.

v. MONTPELIER & W. R. R. Co.

SAME

v. GRANITE R. CO.

GRANITE R. Co.

v. BARRE R. CO.

Supreme Court of Vermont, Special Term.

May 30, 1889.

The first two of these cases were petitions praying for the appointment of commissioners to determine the points of connection and crossing for the railroads of the several parties. The third case was a cross-petition of the Granite Railroad Company against the Barre Railroad Company, praying for the same relief. The three cases were referred to the same commissioners, and heard together upon the report of such commissioners at a special term of the supreme court. The facts appear in the opinion.

S. C. Shurtleff, for petitioner, B. F. Fifield and Geo. W. Wing, for defendants.

VEAZEY, J. The decision of the contention between these two railroad companies, viz., the Barre Company and the Granite Company, as to which is entitled to build a railroad on the line of the recorded surveyed location of the Granite Company on the Burnham meadow, depends upon the construction to be given to those statutes of Vermont which provide for the taking and condemnation of land for railroad purposes. Chapter 157, R. L., provides that a railroad corporation may lay out its road, not exceeding five rods wide, and may purchase or otherwise take lands necessary for making its railroad; that it may cause such examination and surveys for the proposed railroad to be made as are necessary to the selection of the most advantageous route, and may enter upon lands of a person for such purpose; that before it commences proceedings for the purpose of acquiring title to real estate, or an interest therein, it shall cause the location of its road, signed by a majority of its directors, defining the courses, distances, and boundaries of the same in each town through which it passes, to be recorded in the respective town clerks' office of said towns. Then follows section 3359, R. L., which provides that "when a railroad corporation has not acquired, by gift or purchase, land, real estate, or property, taken or required for the construction of its road, and if the parties do not agree as to the price of such lands and other property," two judges may appoint commissioners to determine the damages, etc., under the provisions of section 3304, and it is upon the payment of the damages, or deposit of the same as therein specified, that the company is "deemed to be seised and possessed of the land" appraised by the commissioners. On the 9th of April the Granite Company, having previously completed its surveys for its proposed railroad, caused the same to be recorded, as provided in the sections of the statutes alluded to, and thereafter proceeded with due diligence to have the damages to the owner of the Burnham meadow, as the same appeared in the land records of Barre, across which the surveyed location extended, appraised by commissioners, and deposited the amount pursuant to the statutes. On the 10th of April (the next day) the Barre Company took a deed of substantially the same laud from the owner. Mr. Burnham, which the Granite Company had thus located upon. This deed was taken in fulfillment of a written agreement of Burnham to sell to one Morse, in trust for the Granite Company, "any land necessary for the construction" of its proposed railroad, and it was taken before the Granite Company had obtained an appraisal of land damages, and deposited the amount thereof. This written agreement to sell was not recorded, and the Granite Company had no notice of it before the recording of its survey. Many other facts appear in the commissioner's report. The foregoing is perhaps sufficient, in order to make the claim of the respective companies plain, which is that each obtained priority of right to the same land for its railroad.

The Barre Company says—First, that its purchase of land was prior to the recording of the Granite Company's survey, and this by virtue of the said contract to sell; and, second, that, if subsequent, it is sufficient, because it was before the Granite Company had paid or deposited the land damages, and so became entitled under the statute to the seisin and possession of the land. The Granite Company says that, having taken the statutory initial step to obtain seizin and possession, and continued with reasonable diligence,—about which no question is made, —it could not be ousted by the Barre Company's subsequent purchase, and insists that the purchase must be treated as subsequent.

The question is new in this state. It has been decided in other states, and always, so far as the cases show which counsel have submitted, or that I have found, in favor of the Granite Company's contention. A late case is Railroad Co. v. Railroad Co., 17 N. E. Rep. 680, decided by the court of appeals of New York in June, 1888, and it was there held that, when the initial steps pointed out by the statute were taken, there only remained for the company to acquire, through purchase or through proceedings in invitum, the right of way over the lands through which the line of route had been surveyed. The initial steps which the New York statute provided were the making and filing of a map and profile of the route intended to be adopted, and giving certain written notice to all occupants of the land affected. The court then said: "Clearly, there is involved in these provisions the intention of the legislature that, after the initial proceedings have been taken which the statute points out as the first action of the new corporation, the lands over which the company's route is located shall be subjected to the right of the company thereafter to construct thereon. * * * This right to locate its line of road at its election is delegated to the corporation by the sovereign power, as is the right subsequently to acquire in invitum the right of way from the land-owner. * * * When, therefore, a corporation has made and tiled a map and survey of the line of route it intends to adopt for the construction of its road, and has given the required notice to all persons affected by such construction, * * * in our judgment it has acquired the right to construct and operate a railroad upon such line, exclusive in that respect as to all other railroad corporations, and free from the interference of any party. By its proceedings it has impressed upon the lands a lien in favor of its right to construct, which ripens into title through purchase or condemnation proceedings. We could not hold otherwise without introducing confusion in the execution of such corporate projects, and without violating the obvious intention of the legislature." The decisions in New Jersey and Pennsylvania, and other states, have been the same. Indeed, I have not found, and do not think there is, a judicial decision or utterance to the contrary. In Pierce on Railroads the author says: "The prior right to particular land attaches to the company which first actually surveys and adopts a route, and files its survey according to law." Page 157. See, also, 2 Wood, By. Law, § 237, p. 744, note 1, and page 750. The numerous authorities touching this question are there cited by these authors. But it is said that where this rule has obtained the land-owner can recover his damages as soon as the location is made and recorded, which is not the rule in this state. This is true in some states, and may be in all where the courts have held as above shown; but in no instance have I found this fact alluded to as a reason for the ruling. In no case is it held that this initial step constitutes a right to the land as against the owner. In ail the states there are further provisions, as in our state, for the appraisal proceedings, and completing the establishment of the right to the land. The filing and recording of the survey is...