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

• Decision Date: 30 May 1889
• Citation: 17 A. 923,61 Vt. 1
• Parties: BARRE RAILROAD CO. v. MONTPELIER & WELLS RIVER RAILROAD CO. SAME v. GRANITE RAILROAD CO. GRANITE RAILROAD CO. (by cross petition) v. BARRE RAILROAD CO
• Court: Vermont Supreme Court

17 A. 923

61 Vt. 1

BARRE RAILROAD CO. v. MONTPELIER & WELLS RIVER RAILROAD CO.

SAME v. GRANITE RAILROAD CO. GRANITE RAILROAD CO. (by cross petition) v. BARRE RAILROAD CO

Supreme Court of Vermont

May 30, 1889

SPECIAL TERM, OCTOBER, 1888.

S C. Shurtleff, for the petitioner.

Present ROYCE, Ch. J., ROSS, POWERS, VEAZEY, TAFT, ROWELL and TYLER JJ.

OPINION

VEAZEY

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 clerk's office of said towns. Then follows section 3359, Revised Laws, 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 3364, it is upon the payment of the damages or deposit of the same as therein specified, that the company is "deemed to be seized 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 land, 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 seizen and possession of the land.

The Granite Company says, that having taken the statutory initial step to obtain seizen 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 Rochester, H. L. & R. Co. v. New York, L. E. & W. R. Co., 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 filed its map and survey of its line of route it intends to adopt for the construction of its road, and has given the required notices 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 the route, and files its survey according to law," p. 157. See also Wood's Railway Law, vol. 2, sec. 237, p. 744, note 1, and p. 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 all 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 nowhere spoken of as other than the initial step to the obtaining of the ultimate right. The right of the railroad company thereunder is no greater as against the land owner in those States where the land owner may proceed to enforce his claim for damages upon filing and recording the survey than in our State. The reason for the ruling is expressed in the quotation supra, from the New York case first cited viz: the legislative intent. Under its franchise the railroad company may select its location between the terminal points. The location can be determined only upon careful examination and expensive surveys. And then the statute prescribes that this must be recorded in the respective town clerk's offices before the company may commence proceedings for the purpose of acquiring title to the land or an interest therein. Those proceedings necessarily extend over several days. Can it be fairly inferred that the legislature intended by the provision for record...