Currie v. N.Y. Transit Co.

• Decision Date: 22 June 1904
• Citation: 66 N.J.E. 313,58 A. 308
• Parties: CURRIE et al. v. NEW YORK TRANSIT CO. et al.
• Court: New Jersey Supreme Court

58 A. 308

66 N.J.E. 313

CURRIE et al.

v. NEW YORK TRANSIT CO. et al.

Court of Errors and Appeals of New Jersey.

June 22, 1904.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Mungo J. Currie and others against the New York Transit Company and the National Docks Railway Company. 55 Atl. 1135. Decree for defendants, and complainants appeal. Affirmed.

Charles C. Black, for appellants.

Collins & Corbin, for respondents.

GUMMERE, C. J. The New York Transit Company laid an oil pipe line on the right of way of the National Docks Railway Company, with the consent of the latter. A part of this right of way was acquired by the Bergen Neck Railroad Company (to whose rights the National Docks Railway Company has succeeded) from the predecessors in title of the appellants by condemnation proceedings taken under sections 12 and 13 of the general railroad law (Gen. St. pp. 2641, 2642), the Bergen Neck Railroad Company having been incorporated under that statute. The bill in this cause was filed to compel the removal of the pipe line from this portion of the right of way, the contention of the appellants being that they still retain, in the laud condemned, such an interest as entitles them to prevent it from being used for any other than strictly railroad purposes, and that the Bergen Neck Company only acquired by the condemnation proceeding "a right of way for railroad purposes over and across the land in question, leaving the fee therein and in and to the soil thereof vested in" the appellants. On final hearing the bill of complaint was dismissed on the ground that the appellants had no such interest in the land condemned as entitled them to interfere with the use to which it was being put by the respondents, even though such use was ultra vires the corporation. The complainants appeal from the decree of dismissal.

The extent of the interest acquired by a railroad corporation in lands condemned by it has been the subject of frequent discussion, and much variance of opinion has been expressed on the subject, not only generally, but in our own decisions. In the case of Taylor v. N. Y. & Long Branch R. R. Co., 38 N. J. Law, 28, Beasley, C. J., says: "The fee in the land is not acquired by the company, but a mere easement in such land. The title remains in the owner, the property being made servient to the purposes of the railroad." In the case of New Jersey Zinc & Iron Company v. Morris Canal & Banking Co., 44 N. J. Eq. 404, 15 Atl. 230, 1 L. R. A. 133, Van Fleet, V. C, declares that: "Where the state invests a corporation with the sovereign prerogative of eminent domain for the purpose of enabling them to construct and operate a public highway and take land by force of their charter or by any other means than by grants for the purposes of such highway, it is manifest that the plain purpose of the grant to them is not to give them capacity or invest them with power to take a fee, but merely to give them power to acquire such an easement in the land as will enable them fully to accomplish the purpose for which they were created." On appeal to this court the Zinc Company Case was affirmed on the opinion of the Vice Chancellor. 47 N. J. Eq. 508, 22 Atl. 1075. In the case of Penna. R. R. Co. v. Breckenridge, 60 N. J. Law, 583. 38 Atl. 740, Adams. J., delivering the opinion of this court, declares that a grant of power to condemn lands for railroad purposes "will be construed to give merely the power to take an easement adequate to the accomplishment of the corporate design." On the other hand, in the case of De Camp v. Hibernia Mine R. R. Co., 47 N. J. Law, 43, Depue, J., expresses the opinion that by condemnation proceedings an estate in the land itself was vested in the company, and not a mere easement therein. So, too, Beasley, C. J., in the case of N. Y., Susq. & West. R. R. Co. v. Trimmer, 53 N. J. Law, 1, 20 Atl. 761,15 years after the delivery of his opinion in the Taylor Case, changing the view expressed by him in that case, held that the interest acquired by condemnation proceedings was not a mere easement in the land, but such an estate as would support an action of ejectment brought to recover possession of it. Again, in the late case of U. S. Pipe Line Co. v. Del., Lack. & West. R. R. Co., 62 N. J. Law, 254, 41 Atl. 759, 42 L. R. A. 572, Depue, J., delivering the opinion of this court, reiterated the view expressed by him in the De Camp Case. Notwithstanding that three of the decisions referred to are those of this court, the question presented by this appeal is not one to which the doctrine of stare decisis is applicable, for the reason that the expression of view as to what interest in the land was acquired by a corporation by the exercise of the power of eminent domain was in each of these cases entirely obiter. In the New Jersey Zinc & Iron Company Case the land which was the subject-matter of the controversy was claimed by the canal company, not by virtue of any condemnation proceedings taken for the purpose of acquiring it, but solely by adverse possession for more than 20 years. The same situation existed in the case of Penna. R. R. Co. v. Breckenridge. In the U. S. Pipe Line Company Case the question presented was the right of the pipe line company to lay its pipe across lands held by the railroad company; not by virtue of any condemnation proceeding, but by conveyance. The quantity of interest which a railroad corporation obtains in land taken by it under the power of eminent domain is that which the statute conferring the power authorizes it to acquire. The Legislature may authorize the taking of a fee, or any less estate, in its discretion. U. S. Pipe Line Co. v. Del., Lack. & West. R. R. Co., supra; Sweet v. Buffalo, etc., R. R. Co., 79 N. Y. 299, 300. It is manifest, therefore, that it cannot rightly be said, on the one hand, that nothing is ever acquired, by such proceedings, except a mere easement in or right of way over the land condemned;...