N. R. Co. of N.J. v. Demarest
| Decision Date | 25 November 1919 |
| Citation | 108 A. 376 |
| Parties | NORTHERN R. CO. OF NEW JERSEY v. DEMAREST. |
| Court | New Jersey Supreme Court |
Appeal from Circuit Court, Bergen County.
Suit by the Northern Railroad Company of New Jersey against Edwin Demarest. Judgment for defendant, and plaintiff appeals. Rule made absolute.
Argued June term, 1919, before the CHIEF JUSTICE and MINTURN and BLACK, JJ.
Collins & Corbin, of Jersey City, for appellant.
John P. Stockton and Warren Dixon, both of Jersey City, for respondent.
The suit was in ejectment, and was tried before a jury at the Bergen circuit, and the verdict was for defendant. The premises in question, upon which coal pockets and a railroad siding leading thereto have been erected, are in the borough of Tenafly, Bergen county, and lie parallel to and immediately east of plaintiff's railroad tracks.
The plaintiff acquired title to the premises and adjoining lands by condemnation proceedings against Mary O'Kill and others in the year 1858. The Erie Railroad Company is the lessee of the Northern Railroad Company. Defendant denied plaintiff's title, and claimed title by adverse possession, and also set up the statute of limitations.
Title to the middle third of the land passed from Peter Jay to his son James Jay, by descent, and he devised that portion of the tract in trust for his daughter, Mary O'Kill, with provision that if she made a will, or any writing, signed in the presence of three witnesses, before arriving at the age of 60 years, disposing of the property among her, children or grandchildren, then the testator's executors were to distribute the property as directed by her. Mary O'Kill, on April 14, 1846, before she arrived at the age of 60 years, made her will, disposing of the property among her three children, James Jay O'Kill, Jane Swift, and Mary Helena Mahan.
The condemnation proceedings by the Northern Railroad Company which were instituted in the year 1858 proceeded against Mary O'Kill and her three children. That company had power to condemn, and a certified copy of the condemnation proceedings was admitted in evidence, as was also the lease by the Northern Railroad Company of New Jersey to the Erie Railroad Company.
Defendant objected to plaintiffs' title on the ground that at the time or the condemnation proceedings the title to the land condemned was in the trustee under the will of James Jay, and not in Mary O'Kill and her three children, and that, as the trustee was not made a party to the condemnation proceedings, the proceedings were void.
The will of Mary O'Kill was decreed by the Court of Chancery of New Jersey to have been a valid exercise of the power' of disposition or appointment given to her by the will of James Jay.
It is undoubted, however, that upon the making of the will of Mary O'Kill, which was prior to the condemnation proceedings, an equitable estate in fee passed to her three children, regardless of a conveyance by the trustee. Cushing v. Blake, 30 N. J. Eq. 689.
In any event the condemnation proceedings were valid, notwithstanding the trustee under the will of James Jay was not a party thereto, and in virtue thereof the railroad company acquired full rights against Mary O'Kill and her three children, who were the owners of the entire beneficial estate. Natl Ry. Co. v. Eastern & Anaboy R. R. Co., 36 N. J. Law, 181.
Defendant also objected to plaintiff's title on the grounds that the description of the locus in quo contained in the petition for condemnation was not sufficient.
The description began at a specific point, easily ascertained, at the time of the proceedings, and ran by a definite course to a line which must also have been well fixed at that time. The width of the land to be taken as well as its area were therein set forth. This description was definite and certain. "Id certum est quod reddi postest certum."
The supplement to the act incorporating the Northern Railroad Company of New Jersey, under which the condemnation proceedings were instituted, provides that a certified copy of the condemnation proceedings should at all times be considered as plenary evidence of the right of the company to have, hold, use, occupy, possess, and enjoy the lands condemned. The company has been in actual possession of the land condemned, not including the locus in quo, for over 50 years, and in that situation there was a presumption of payment of the award. Parisen et al. v. N. Y. & L. Branch R. R. Co., 65 N. J. Law, 413, 47 Atl. 477.
The uncontradicted evidence and the maps proved that the premises in question are a part of the land acquired by the condemnation...
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