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 |
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.
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:
* * *'
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...
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