Hibernia Under-Ground R. Co. v. De Camp

• Decision Date: 30 November 1885
• Citation: 4 A. 318,47 N.J.L. 518
• Parties: HIBERNIA UNDER-GROUND R. CO. v. DE CAMP and others.
• Court: New Jersey Supreme Court

4 A. 318

47 N.J.L. 518

HIBERNIA UNDER-GROUND R. CO.

v. DE CAMP and others.

Court of Errors and Appeals of New Jersey.

November Term, 1885.

In error.

Henry C. Pitney, (with whom was Malon Pitney,) for plaintiff in error.

Cortlandt Parker, (with whom was Alfred Mills,) for defendants in error.

DIXON, J. This writ of error brings up a judgment of the supreme court setting aside an order appointing commissioners to appraise certain property which the Hibernia Under-ground Railroad Company seeks to condemn. The company was organized under the general railroad act and its supplements, for the purpose (as its articles of association state) of purchasing, operating, and maintaining a certain railroad already constructed, running about two-thirds of a mile, wholly under ground, through the Hibernia vein of iron ore in Morris county, to be used for the transportation of minerals, and of materials, implements, and machinery for the sinking and working of mines. This railroad having been purchased, the company finds that the only right to maintain the same, on what is called the "De Camp Mine Lot," is derived from a lease which expires in 1894; and the proceedings now before us were instituted with the view of acquiring the right of perpetually maintaining the road across this lot, about 10 chains in length.

The company's petition describes the property to be condemned (so far as the description is pertinent to the present inquiry) in the following language:

"The right to perpetually maintain and operate the Hibernia Under-ground Railroad as at present constructed and operated, being a railroad with a single track of the gauge or breadth of two feet and nine inches between the rails, and operated by steam locomotives and cars not exceeding six feet and six inches in breadth and eight feet in height, in, through, and along that portion of the Hibernia tunnel * * * known as the 'De Camp Mine Lot.' * * * The center line of said railroad, where it crosses said De Camp mine lot, is described as follows: 'Beginning,' etc.; 'also the right to repair, renew, and alter said railroad as occasion may require, including the right, for the purposes aforesaid, to enter upon and occupy so much of said tunnel as lies within four feet of said center line, on each side thereof. * * *' These proceedings are not intended to acquire any right or easement of support for the tracks or road-bed of said railroad by the ores lying beneath said tracks and road-bed, but the present and future owners of said De Camp mine lot are to be at liberty, after reasonable notice to said Hibernia Underground Railroad Company, or their successors or assigns, to mine and remove all or any part of the ores lying beneath said road-bed, notwithstanding the removal thereof may weaken or destroy the support of said road-bed. And, further, in case, at any time, the support of said road-bed shall happen to be destroyed or materially weakened by reason of the removal, in whole or in part, of the ores lying beneath the same, then and in such case the said Hibernia Under-ground Railroad Company, and its successors and assigns, are to have the right to support said road-bed by timbering placed across said tunnel or by other means, or to make an excavation in the south-easterly or hanging wall of said vein, for the purpose of providing a road-bed for said railroad; such excavation not to exceed the breadth of eight feet, measured from the face of said hanging wall, and the height of eight feet, and to extend along said hanging wall across said lot of land at the same level as the present floor of said tunnel."

One question raised by the land-owners is whether the rights thus defined were such as the company could lawfully condemn, and the decision of this question against the company in the supreme court is the matter now complained of as error.

The specific authority which the company aims to put in force is conferred by a supplement to the general railroad act, approved March 12, 1879, (P. L. 166,) under which the company was organized. This supplement enacts that, "when any corporation formed under the provisions of this act shall take legal proceedings to acquire the right of way for its proposed railroad beneath the surface of the earth, such right of way shall not include the right to permanently use or occupy the surface of the earth immediately above such railroad, and where the same is not broken, but shall be confined to a mere right to tunnel and excavate the earth for its tracks;" and if the company has purchased a railroad already constructed, but has not acquired the right to maintain the same from the owners of the fee-simple of any lands upon, under, or through which it is built, then "it shall be lawful for the corporation...