Bergen Neck Railway Co. v. Point Breeze Ferry & Improvement Co.

The opinion of the court was delivered by Dixon, J. The judgment brought up by this writ of error was rendered in the Hudson Circuit, upon trial of appeals taken by both parties from the award of commissioners appointed in proceedings which were instituted by the Bergen Neck Railway Company to condemn lands of the Point Breeze Ferry and Improvement Company. The issue at the trial related solely to the value of the land and the damages sustained by the owner through the taking thereof, and' the errors now assigned are all based upon the admission or exclusion of evidence touching that issue. The ferry company showed title to a strip of land on Bergen Neck, about one hundred feet wide and seven hundred feet long, extending on a curve which veered from a southerly to a southeasterly direction, from the line of the New Jersey Central railroad to the shore of the Hudson river, except as it was intersected by the canal of the Morris Canal and Banking Company, which lay across its easterly end. It also showed title to a large tract of land at the easterly end of this curved strip, lying mainly below the natural high-water mark of the river, which tract had to a great extent been filled in by the ferry company. The land condemned by the railway company formed the westerly end of this curved strip between the line of the Central railroad and a parallel line one hun — 191 — •died feet east thereof. In this state of the proofs, the ferry-company offered evidence respecting the damage which the tract lying east of the canal would sustain, because its possible •connection with the Central railroad, by means of a railway over the curved strip, would be impeded by the intervention of the proposed railroad of the condemning company. To this evidence the railway company objected, on the ground that the land taken was not a part of the tract east of the canal, the canal separating the two, and the objection being overruled and the evidence received, an exception was sealed. The general principle on which damages, beyond the value of what is actually taken, are awarded to an owner who is compelled to part with his land for public use, is for present purposes sufficiently indicated by the language of Mr. Justice Garrison, delivering the opinion of this court in Currie v. Waverly Railroad Co., 23 Vroom, 381: “It is an established rule of law in proceedings for condemnation of land, that the just compensation which the landowner is entitled to receive for his lands and damages thereto, must be limited to the tract a portion of which is actually taken. * * * In the application of this rule no practical difficulty can arise where the tract is bounded by lands of others.” If we duly consider the legal situation before the trial court at the time this evidence was admitted against objection, it will be seen, I think, that the curved strip, part of which was taken, was bounded on the east by land belonging or appearing to belong to the canal company, and thereby was separated from the tract lying east of the canal. The peaceable possession by the canal company of the land occupied with its canal, raised a presumption that that corporation owned the land in fee simple, Den v. Morris, 2 Halst. 6; Sullivan v. Sullivan, 66 N. Y. 37, 41. If the fact that the company’s charter, which was a public statute, gave the company power to acquire land by condemnation, would prevent this usual presumption, still there would certainly arise a presumption that the land was obtained in the mode prescribed by the charter. Under this — 192 — enactment, passed December 31st, 1824, and a supplemental act passed January 26th, 1828, the company was authorized to construct a canal from the Delaware river to the Hudson,, and for that purpose to take “ lands, waters and streams ” by specified legal proceedings. Those proceedings being completed, “the estate, right, property and interest in and to the-premises so appropriated,” * * * became, in the words-of the charter, “ vested in the company, to be by them held-so long as they shall be used for the purposes of said canal.” The charter further declares that, at the end of ninety-nine-years from its passage, the state should have the option for one year of taking the canal and appurtenances to itself at an appraised valuation, and that, in.case the state should not so take it, the charter should continue for the further term of fifty years, at the end of which the canal and appurtenances, should become the sole property of the state. Under these provisions, the combined title of the canal company and the-state to the land occupied with the canal was a base fee and gave the proprietor the same rights and privileges as if it were-a fee simple (1 Cruise Dig., tit. 1, ¶¶ 76, 80; 4 Cruise Dig., tit. 32, eh. XXL, ¶¶ 9,10), so long as the land was used for' the purposes of the canal, which might be forever. This-intervening title rendered the lands of the ferry company on the east and west sides of the canal, separate tracts. But it is said the general rule above declared is not applicable to the present case, because the Morris canal is a public-highway, across which the owner of intersected lands may-pass from one parcel to the other, and so their unity remains. Conceding this right of passage, still it is entirely clear that the right does not extend to the construction of a railroad on or through the canal company’s land. For all the purposes, of a railway from the reclaimed tract east of the canal to the Central railroad, that tract and the curved strip were as distinct as they possibly could be, and yet for those purposes,. and those only, were these tracts treated as a unit, and on that basis was the evidence received. In that aspect, at'leasty, the testimony was illegal. — 193 — The fact that, at the timé this testimony was admitted, there was in evidence a deed made by Currie to the ferry company, which referred to the canal company’s title as an easement, has not been overlooked. Such a statement, inter alios, could neither affect that title nor become legal evidence of it against the railway company. It is next contended, on behalf of the ferry company, that the charge of the trial judge cured any error committed in the reception of this testimony. It appears that, in a subsequent stage of the trial, the railway company put in evidence the deed by which the canal company obtained title to the land occupied with its canal at that point, which deed conveyed the land to the canal company, its successors and assigns, to have and to hold so long as said land and premises should be used for the purposes of said canal. This grant showed the title of the canal company to be just what its title by condemnation would have been— the lowest title which it should be presumed to hold from the mere fact of peaceable possession. Apparently because of this deed, the trial judge changed his opinion as to the unity of the tracts lying east and west of the canal, and, in his charge to the jury, instructed them to disregard the testimony concerning damages, so far as it related to the tract east of the canal, and to estimate only the damages done to the curved strip. "We must assume that the jury obeyed these instructions; nevertheless, I think the error was not cured, because the correction came too late. The right of trial by jury, as established among us, includes the right of counsel to discuss before the jury the issues of tact which are submitted to their decision. Sullivan v. State, 17 Vroom 446. Under the rulings of the court at the trial of the present case, up to the delivery of the charge, one of the issues to be submitted to the jury was the amount of detriment which the lands of the ferry company lying east and west of the canal, considered as one tract, would sustain by the taking of the land condemned, and it must be assumed — 194 — that that was the issue to which counsel directed their argument. The issue finally submitted to the jury by the judge was a materially different one — the amount of detriment to the curved strip alone, a comparatively insignificant portion of the ferry company’s property. This issue counsel had had no opportunity to discuss, and they had been practically deprived of such an opportunity by the erroneous rulings of the court. Indeed, the injurious effects of this error went deeper even than to the right of discussion by counsel, for the very testimony introduced by the railway company in its defence must have been confined to the issues as the ruling of the court had shaped them. Certainly a ruling which constrained respectful counsel to sustain in proof and in argument a burden more onerous than their client was legally bound to bear, was not rendered harmless because the court ultimately told the jury that the law imposed on the party a different and a lighter task. The error should have been corrected in time to enable the defendant to meet the issue as the new views of the court presented it. Had the evidence, when received, been legitimate and its irrelevancy become apparent only on the disclosure of other facts, a motion to overrule it would, no doubt, have been necessary to make its retention erroneous; but its reception being an error, that error continued until it was eradicated under conditions which restored the substantial rights of parties. "We are not unaware of the fears which some judges have entertained as to inconveniences springing out of the rule here laid down, but on consideration those fears seem to have no reasonable basis. The rule will not prevent the trial court from rectifying its mistakes when that can be done without substantial injury to litigants, and it should prevent an attempt to correct them under any other circumstances. But even upon the theory of damages adopted at the trial, there are errors which require the reversal of the judgment. Mr. Siedler, a witness produced by the ferry company, testified that he was connected with the railroad of an existing railroad corporation and with a projected railroad, not — 195 — stating in what capacity; that he had knowledge of the value of terminal property on the Hudson river, opposite New York; had bought properties on the line of New York bay, and was acquainted generally with the value of property in the vicinity of the Point Breeze company. On the strength of these qualifications he was asked the value of the land in that vicinity, between the Central railroad and the Morris canal, in connection with land adjacent to it having a water front, the value of the curved strip as it stood, and what the residue of it would be worth after the land required by the railway company had been taken by that company. These questions were evidently intended by the examining counsel, and understood by the opposing counsel, the court and the witness, to call for the witness’ opinion, with regard to the comparative utility of the curved strip as the site of a railway, from the Central railroad to the tract lying east of the canal, viewing the strip as it was and as it would be after the construction of the Bergen Neck railroad. Lawful answers to these questions necessarily required, on the part of the witness, expert knowledge respecting the building and operation of one railroad across another, at, above or below grade. This line of examination was objected to by counsel for the railway company, on the ground that the qualification of the witness as an expert was not shown. Nevertheless, the questions were allowed, and in response the witness gave his views at length on the expense and inconvenience which would attend the construction and management of a railroad on the curved strip, after the Bergen Neck railroad was built. On these topics, we think the legal competency of the witness did not appear. Mere connection with railroad corporations and knowledge of the value of land come far short of indicating expertness on the special subjects with which the witness wás permitted to deal. Pennsylvania Railroad Co. v. Root, 24 Vroom 253; Laing v. United New Jersey Railroad and Canal Co., 25 Id. 576. For these errors, the judgment below must be reversed. — 196 — For affirmance — The Chief Justice, Depue, Krueger. 3. For reversal — The Chancellor, Abbett, Dixon, Garrison, Lippincott, Magie, Reed, Van Syckel, Bogert, Brown, Sims, Smith. 12.