Bridgman v. St. Johnsbury & L. C. R. Co.

• Citation: 58 Vt. 198,2 A. 467
• Court: Vermont Supreme Court
• Decision Date: 10 February 1886
• Parties: BRIDGMAN, adm'r, and others v. ST. JOHNSBURY & L. C. R. CO.

2 A. 467

58 Vt. 198

BRIDGMAN, adm'r, and others

v. ST. JOHNSBURY & L. C. R. CO.¹

SUPREME COURT OF VERMONT.

Filed February 10, 1886.

Appeal in chancery from Caledonia county, December term, 1884. Heard on bill and demurrer. Ross, J., chancellor, pro forma dismissed the bill.

The bill set forth in substance that one Russell Bridgman, deceased, at the time of his death was the owner of certain real estate in the town of Hardwick; that the said Russell Bridgman died intestate, leaving the following heirs to his estate: His wife, Harriet W. Bridgman, who died on or about the first of January, 1884, and upon whose estate D. W. A. Bridgman was duly appointed administrator, Frederick T. Bridgman, Helen A. Holton, Hattie W. Bridgman, Ina M. Bridgman, Ida E. Bridgman, and D. W. A. Bridgman; that the aforesaid heirs of said Russell Bridgman have been and are now the sole owners of the aforesaid real estate, with the exception of said Frederick T. Bridgman, whose interest has been assigned to Luke P. Poland; that Hattie W. Bridgman deceased on the first day of January, 1880; that said Hattie died without issue, and upon whose estate no administration has ever been had, she not being indebted to any one at the time of her decease; that said Harriet W. Bridgman, Frederick T. Bridgman, D. W. A. Bridgman, Ina M. Bridgman, and Ida E. Bridgman were her only heirs, and that they as such heirs became the sole owners of the estate of the said Hattie: that said real estate consisted of a valuable farm in the village of South Hardwick, Vermont, with a pasture meadow of about 30 acres, a building lot on one of the main streets of said village, buildings, etc.; that a certain railroad corporation, then having a legal existence and known as the Lamoille Valley Railroad Company, about the year 1871 laid out and built a railroad through the said village; that in the construction of said railroad said corporation, without right, title, permission, or license from any of the said heirs, entered upon the said real estate and built a railroad across said land; that ever since the said corporation or its successors have wrongfully occupied said land and kept the said heirs from use thereof; that said corporation continued to run and manage said railroad line till about December 1, 1875, when said corporation became and was insolvent and unable to pay its debts, and receivers were duly appointed; that said receivers managed said railroad until about July, 1880; that on the second of May, 1876, the said heirs commenced their action at law against said corporation to recover their damages for the taking of said land; that said suit was duly prosecuted, and such proceedings were had thereon that at the June term, 1877, of the Caledonia county court judgment was rendered against said corporation, and that the damages were assessed at the sum of $968.60; that said judgment has not been paid; that the said Lamoille Valley Railroad Company was merged with some other corporations about the first of July, 1880, into a new corporation under the name of the St. Johnsbury & Lake Champlain Railroad Company, the defendant; that neither corporation ever had any right or title to said real estate; and that they have been occupying the same in their own wrong; and that neither corporation have ever paid or caused to be paid the said judgment, or in any way paid or offered to pay any remuneration for said land; and that the same was damaged at the time of the taking aforesaid to the amount of more than $1,000, and praying that the defendant should be ordered to pay the amount of the judgment against the Lamoille Valley Railroad, or to account for the land damage, and in default thereof that the defendant be foreclosed from all right or interest in said land.

Harry Blodgett, for the orators.

The right to take the orators' lands without their consent, and without any conveyance or agreement from them, and appropriate the lands for railroad purposes by the company, and wholly deprive the orators of their land, can only be done when the orators have been paid or tendered an "equivalent in money;" and until such time, as an equivalent in money is paid or tendered to them, they have an equitable lien upon the lands, which the court of chancery will enforce by enjoining the company from using the lands until the damages are paid. Kittell v. Railroad Co., 56 Vt. 96; Kendall v. Railroad Co., 55 Vt. 438; Reed v. Railroad Co., Sup. Ct. Fr. Co. Jan. 1879; Adams v. Railroad Co., 57 Vt. 240. The orators having an equitable lien upon the land, have they waived their lien? The defendant claims that by instituting the action at law, and prosecuting the same to final judgment, against the Lamoille Valley Railroad Company, the orators waived any lien they had upon the land, and that their claim is merged in a judgment against said last-named company, and they now have no remedy, either at law or in equity, against the defendant for the land taken and appropriated as aforesaid. The Lamoille Company, having neglected for more than two years to have the land damages appraised, in accordance with the provisions of section 3359 of Revised Laws, that being a provision for a special tribunal, which the company could only invoke the aid of to assess the damages; and when the company neglected for more than two years after it entered upon the land to set the machinery in motion for an assessment of the damages under said section,—then the land-owner may resort to his action under section 3371 of Revised Laws; the remedy under said last-named section being the one to which resort was had by orators in this case, in which they procured the judgment set forth in the bill; the first-named section being a provision solely for the company to take advantage of, and the last-named section being a provision solely for the land-owners to take advantage of, they both being remedies given by the same railroad law, and both for the same purpose, namely, the assessment of the damages for land taken for railroad purposes. Now, if the assessment of the damages, under and by virtue of the first-named section by commissioners, is no waiver of the lien upon the land, as was held by this court in Kittell v. Railroad, supra, how can it be successfully contended for that a resort to the tribunal by the land-owner that is specially authorized by the same statute and a part of the same statute and a part of the same railroad law to assess his damages can be a waiver of the lien upon the land? We contend that this question was settled in the last-named case.

The defendant, who stands solely on the law governing the taking of lands by virtue of the right of "eminent domain," can have no claim upon the lands until it has paid or tendered an equivalent in money. A judgment rendered for the amount of a claim, for which a party holds a lien, is no waiver of the lien; the only effect such judgment can have is to determine and fix the amount due. It is only the payment or a satisfaction of the judgment that cancels the lien. Root v. Lord, 23 vt. 568; Buffalo, N. Y. & P. R. Co. v. Harvey, 18 Pa. 734; Matthews v. Lucia, 55 Vt. 308; Child v. Allen, 33 Vt. 476; Varner v. Railroad Co., 55 Iowa, 677; S. C. 8 N. W. Rep. 634; Williams v. New Orleans M. R. Co., 60 Miss. 689. "A company entering on the land, for the construction of a road, without complying with the statute provisions for compensation, is liable to be enjoined in equity, and this remedy is available to the owners against any parties who claim under the company which made the entry. "Pierce, R. R. 167; Gilman v. Sheboygan & F. R. Co., 40 Wis. 653; Western Pennsylvania R. Co. v. Johnston, 59 Pa. St. 290; Durry v. Midland R. Co., 127 Mass. 571.

The orators contend that the judgment rendered in the case of The Orators v. Lamoille Valley Railroad Co., at the June term, 1877, of Caledonia county court, particularly set forth in the bill, is binding and conclusive upon this defendant, so far as establishing the amount of the orators' damages for the land which had been taken by the Lamoille Company, but appropriated and used by this defendant ever after formation. The defendant, at the time of its organization, knew that the orators' land damages had not been paid, and that the orators had a lien upon the land thus taken, and that the amount due on the lien had been judicially determined in the way and manner pointed out by statute. Now, when defendant took and appropriated said land to its own use, it became liable to pay the amount of the damages that had been judicially determined, or be enjoined from using the land. The defendant took all of the rights, privileges, and franchises of the Lamoille Valley Railroad Company, and by appropriating the same to its own use it became liable for all the burdens that had become fixed claims upon the lands. It could not step in and take all the right of the old company to the land, and adopt and ratify its original taking, and continue to use the land for railroad purposes, without assuming the burdens then resting on the old company, and the defendants then became liable for the land damages which had been judicially determined, and which had become a fixed claim upon the old company, and was secured to the orators by the lien upon the land. The amount due the orators upon their lien on the land having been determined by suit, instituted and prosecuted to final judgment, in accordance with the statute, and not having been ascertained by agreement between the parties, that judgment is conclusive upon this defendant as to amount, and the defendant should by decree of the court be ordered to pay the amount of said judgment, and interest on the same since it took possession of said land, July 1, 1880, or be enjoined from the use of said land.

In the case of Kittell v. Railroad Co., supra, this court held that the award of the commissioners who were appointed to assess the land damages of the orators' intestate, was...