Johnson v. Baltimore & N. Y. Ry. Co.

• Decision Date: 29 April 1889
• Citation: 17 A. 574,45 N.J.E. 454
• Parties: JOHNSON v. BALTIMORE & N. Y. RY. Co.
• Court: New Jersey Supreme Court

17 A. 574

45 N.J.E. 454

JOHNSON

v. BALTIMORE & N. Y. RY. Co.

Court of Chancery of New Jersey.

April 29, 1889.

(Syllabus by the Court.)

On application for injunction, heard on bill and affidavit, and answer and affidavits.

Frank Bergen, for complainant. A. Q. Keasbey, for defendant.

VAN FLEET, V. C. The facts which it will be necessary to consider in deciding this application are few in number, and may be sufficiently stated, for present purposes, as follows: The defendant is a railroad corporation, organized under the general railroad law of this state. It has procured certain lands, belonging to the complainant, and constituting part of a farm owned by her, situate in the county of Union, to be condemned for the use of the railroad which it is constructing. The commissioners appointed to estimate the value of the complainant's land, and assess her damages, made their report on the 18th day of March, 1889, awarding her nearly $2;000, and within two days thereafter the complainant appealed from the award. The complainant's farm is subject to mortgages, amounting in the aggregate to $5,600. The complainant refused to consent to the payment of the award to the mortgagee, and the mortgagee refused to consent to its payment to the complainant, and the defendant then asked leave, under the statute of 1877, to pay the award into this court; and, such leave being given, the defendant, on the 3d day of April, 1889, paid the money into court, and gave notice of that fact to both the complainant and the mortgagee, and thereupon took possession, against the protest of the complainant, of the lands condemned, and commenced the construction of its railroad thereon. The complainant insists that the defendant's appropriation of her lands, under the circumstances stated, constitutes a violation of her constitutional rights, and she therefore asks an injunction restraining the defendant from making any use of her lands until just compensation shall have first been made to her therefore.

The constitution, in declaring what powers the legislature shall not exercise, says, among other things, that "individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners." No compensation had been made to the complainant, by actual payment, when the defendant appropriated her lands. It is not, however, necessary that the money awarded by the tribunal appointed by law to determine what shall be just compensation in the particular case shall actually pass into the hands of the land-owner before his land is appropriated. After the amount to be paid as compensation has been finally fixed, a tender to the land-owner, and a refusal by him to accept, is regarded as equivalent to payment, or as the equivalent of the actual making of compensation. Doughty v. Railroad Co., 21 N. J. Law, 442; Railroad Co. v. Railroad Co., 26 N. J. Eq. 464; Redman v. Railroad Co., 33 N. J. Eq. 168. It is also provided by statute that where lands subject to lien are taken by the exercise of the power of eminent domain, the chancellor may order the money awarded to the owner to be paid into the court of chancery, to the end that that court may direct its distribution; and that the payment of the money into court, and the giving of written notice to the owner that the money has been paid into court, shall have the same effect as if the money had been tendered to him. Revision, p. 1278. The order authorized by this statute has been made, the money has been paid into court, and the notice which the statute directs shall be given, has been given. The validity of this statute, as a constitutional exercise of legislative power, is not assailed or questioned; so it would seem to be clear that the court, in considering the question whether an injunction shall be granted or not, must look at the case exactly as it would if the fact was that an actual tender had been made, on the 3d of April, 1889, of the sum awarded by the commissioners, and the complainant had refused to receive it.

This brings us to the decisive question of The case, namely, can a railroad company, organized under the general railroad law, lawfully take possession of the land condemned for its use, on tender of the sum awarded by commissioners, in a case where the land-owner appealed from the award before the tender was made? In other words, can a land-owner, in view of the provision of the constitution on this subject, be compelled to yield the possession of such part of his land as a railroad company may require for the construction of its road, while the question, what sum of money will constitute just compensation to him for his lands, is in course of judicial determination? The constitution does not declare by what method what will be just compensation to the land-owner shall be ascertained. It leaves the legislature free to adopt any method which to it may seem just and adequate to that end, and it may be that it would be competent for the legislature to declare that an award made by commissioners should, without the intervention of a jury, be final and conclusive upon that question. That, however, is not the method prescribed by the general railroad law. That law declares, in the first place, that, where the railroad company and...