Hibernia Underground Railroad v. De Camp

— 542 — The opinion of the court was delivered by Dixon, J. 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 Underground 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 underground, 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 ten 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: '' The right to perpetually maintain and operate the Hibernia Underground Railroad as at present constructed and operated, being a railroad with a single track of the gauge or breadth of two feet and nine inches between the rails, and operated by steam locomotives and cars not exceeding six feet and six inches in breadth and eight feet in height, in, through and along that portion of the Hibernia tunnel * * * known as the 'De Camp mine lot.’ * * * The centre line of said railroad, where it crosses said ' De Camp mine lot,’ is described as follows: Beginning, &c. * * * Also the right to repair, renew and alter said railroad as occasion may require. Including the right, for the purposes aforesaid, to enter upon and occupy so much of said tunnel as lies within four feet of said centre line on each side thereof. * * * These proceedings are not intended to acquire any right or easement of support for — 543 — the tracks or road-bed of said railroad by the ores lying beneath said tracks and road-bed, but the present and future owners of said ‘ De Camp mine lot ’ are to be at liberty, after reasonable notice to said Hibernia Underground Railroad Company or their successors or assigns, to mine and remove .all or any part of the ores lying beneath said road-bed, notwithstanding the removal thereof may weaken or destroy the support of said road-bed. And further, in case at any time the support of said road-bed shall happen to be destroyed or materially weakened by reason of the removal in whole or in part of the ores lying beneath the same, then and in such .case the said Hibernia Underground Railroad Company and its successors and assigns, are to have the right to support said road-bed by timbering placed across said tunnel or by other méans, or to make an excavation in the southeasterly or hanging-wall of said vein, for the purpose of providing a road-bed for said railroad; such excavation not to exceed the breadth of eight feet, measured from the face of said hanging-wall, and the height of eight feet, and to extend along said hanging-wall across said lot of land at the same level as the present floor of said tunnel.” 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 12th, 1879, {Pamph. L., p. 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 con•fined to a mere right to tunnel and excavate the earth for its — 544 — tracks; ” and if the company has purchased a raih'oad 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 owning and operating said railroad to take and prosecute all such legal proceedings, to acquire the right to maintain and operate its said railroad, that it would have the right to take and prosecute if such railroad had not as yet been built.” The supplement also declares that companies formed under it shall have all the powers, and may exercise all the franchises conferred upon, and which may be exercised by corporations formed under the original act ; but we do not think that these general expressions can enlarge the scope of the special authority granted by the supplement for the condemnation of a right of way beneath the surface of the earth. In designating the rights which the company was to obtain under this special authority, the language used is so explicit as to prevent any inference gathered from general terms; it not only indicates what shall not be acquired, but also expressly declares to what the acquisition shall be confined. We deem it clear that corporations formed to construct or-maintain underground railroads are not entitled to condemn the fee simple of lands for their right of way. What they can acquire is a right to tunnel and excavate the earth, a right to maintain and operate the railroad.' We need not examine or cite the many cases which have held that terms much more indicative of a fee, when used in a grant of eminent domain, import only an easement. All the decisions agree in laying down these principles, that the corporation can take what the legislature has authorized it to condemn, and nothing more, that the authority must be expressly granted or necessarily implied in the express grant, and that it must be strictly pursued. Under these principles, the phraseology used in the-statute cannot mean ownership of the land; it must mean only a right to construct, operate and maintain a railroad upon, through and under the land of another. The petition, therefore, is correct in asking the condemna — 545 — tion, not of land, but of the right to maintain and operate the railroad. This right, however, when acquired, would be paramount, and the land-owner could lawfully do nothing which would impair it. He might make any use of his land consistent with the maintenance and operation of the railroad; as owner of the ores beneath the road-bed, he might remove them, but always subject to this, that he should not weaken the road or materially interfere with the convenience of its operation. This would be the legal consequence of the condemnation by the company of a right to permanently maintain and operate the railroad as constructed. The petition, however, seeks to avoid this consequence, and to reserve to the land-owner the absolute right of removing the ore at his pleasure, without regard to the structure resting upon it. In other words, instead of the permanent right to support the railroad in its present position, which the statute expressly authorizes the company to condemn, the company proposes to take only a temporary privilege of support, until the landowner shall see fit to remove the ore. Thus we are brought to the question whether the express grant of power to condemn the permanent use implies an authority to condemn a temporary use. A somewhat similar question was answered affirmatively by Chancellor Kent in Jerome v. Ross, 7 Johns. Ch. 315. There the canal commissioners had express authority to enter upon, take possession of and use any lands, waters and streams necessary for the prosecution of the improvement, doing no unnecessary damage; and it was insisted that the power could be exercised only for the permanent appropriation of the whole fee; but the court held that the commissioners were not obliged to appropriate a greater interest than was requisite for the public object, and that they might take possession of and use land, temporarily, for the purpose of quarrying stone with which to build a dam required by the canal. This view seems to have been subsequently sanctioned by the Court of Errors in Lyon v. Jerome, 26 Wend. 485. On the other hand, in Currier v. M. & C. R. R. Co., 11 Ohio St. 228, where, under an ordinary power to take land for — 546 — the construction and operation of a railroad, the company-sought to condemn a right of way, already occupied by it, for three years, to be used, while its permanent road was building, the court said: “ The road contemplated by the charter is a permanent thing; the lands to be' taken for it, it is evident, were designed to be taken permanently, once for all. No such thing as a temporary appropriation of land is, in the charter, expressly mentioned, nor does it anywhere seem to have entered the mind of the' legislature. * * * "YYe think that by no fair, and much less by any strict construction of the powers granted to this corporation, can the appropriation claimed be brought within them.” It is noticeable that the New York cases differ from the one before us in several respects. The right of temporary appropriation was there conceded, because, for the purpose in view, that, only was necessary to carry out the legislative design. But here the legislative design, as gathered from the statute and the company’s articles of association, will apparently not be satisfied by the maintenance of the railroad simply until the land-owner shall choose to remove the ore in the road-bed; and the petition itself, in recognition of this fact, seeks to substitute another road, when the existing site shall be destroyed, in order to accomplish fully the object of the incorporation. So that this ground, relied on by Chancellor Kent, for inferring a right to temporary occupation, is wanting in the present instance. In the case of the canal commissioners, also, the right required was reasonably definite, as to both duration and use — possession -until stone could be quarried sufficient for the building of a certain dam; so that a fair appraisal of the right was practicable, especially in view of the fact that the appraisal could legally be postponed until the use was ended. But here compensation must' be made before possession is taken, and the appraisers must, therefore, say in advance what a right of possession, is fairly worth, when the possession can lawfully be forthwith terminated by him to whom the compensation has been paid. Such an appraisement would, in most cases, be a mere guess, and — 547 — rarely could result in the ascertainment of just compensation, which is a constitutional prerequisite to the condemnation of property by individuals and private corporations. I cannot, therefore, rid my mind of grave doubts whether the legislature has authorized the taking of such a limited privilege in the present site of the railroad, as the petitioner demands, and because of these doubts must deny that the power has been granted. But the petition does not stop at the existing road-bed. Conceiving that the needs of the company may outlast the willingness of the land-owner to leave the ore for the maintenance of the superstructure, it prays the condemnation of a further right, in the event of the removal of the ore, to support its tracks upon other property of the owner, and not this only, but a right to choose, in the event indicated, whether that support shall be secured by timbers resting on both walls of the vein, or by excavating the hanging-wall to a depth of eight feet from its face. Thus it aims to carve out a sort of future contingent right in each of two distinct parcels of land now held in fee simple, and to acquire the option of determining hereafter which of those rights it will eventually appropriate. This is plainly going beyond any power conferred by the statute. That a contingent estate already existing may be condemned under the law, I see no sufficient reason to dispute, for such a power seems to be necessary to enable the company, when an estate of that nature is outstanding, to acquire what the statute says it may acquire — a right to permanently maintain an existing road ; but that is a very different thing from a power to create such a contingent interest in order to condemn it, to the end that the company may, in a possible event, ■construct a different road on other lands. Such a power is not expressed in the statute or necessarily implied by anything which is expressed', nor have we found any decision tending to uphold it under an ordinary grant of eminent domain. In ■our opinion, the language of the statute imports only the — 548 — acquisition of present rights, and of whatever may be necessary to make those rights perpetual. For these reasons the judgment of the Supreme Court must be affirmed. For affirmance — The Chancellor, • Dixon, Knapp, Reel, Yan Syckel, Brown, Clement, McGregor,. Paterson, Whitaker. 10. For reversal — None.