The Hudson River Railroad Company v. Outwater and others.
The general railroad incorporation act of 1850, does not apply to the mode of ascertaining the compensation to be made for lands taken for railroads under prior special charters, which prescribe a particular mode for that purpose.
Where a railroad company designates lands required for its road, procures commissioners to be appointed, and they ascertain and report the compensation to be made for such lands to the owners; the proceeding is still incomplete, and neither party has any vested light, neither the company to the lands, nor the owners to the money awarded.
There is no vested right on either side, until an order of the court is made confirming the report, and directing the payment of the money.
Until then, the proceeding may be set aside or abandoned.
The Hudson River Railroad Company were held entitled by their charter to change the route of their road, after an appraisement made, and before its confirmation, so as to take less of the same land, or different land from the same owner; and to have commissioners appointed to appraise the damages for such new line. The court, however, appointed the same commissioners, and required the company to pay the costs and expenses of the owner on the first appraisement.
(Before Oakley, Ch. J., and Sanbeohd and Paine, J.J.)
Dec. 14;
Dec. 31, 1850.
The Hudson River Railroad Company applied to the court pursuant to the act of February 10th, 1848, (Laws of 1848, ch. 80, § 1,) for the appointment of commissioners to ascertain the compensation to he made to the owners, in respect of three parcels of land required for their roadway, at Tivoli, in the town of Red Hook, in the county of Dutchess. One parcel belonged to Feter Outwater, another to James Outwater, and the third to John S. Livingston. The petition set forth a description of the lands as appearing on a new map of their track as altered, at the place in question.
From the affidavits and papers presented by the owners of the lands, it appeared that the company, after making and filing a map of the track of their road through the lands of these parties at Tivoli, procured the appointment of commissioners in the supreme court in the second district, who proceeded to ascertain the compensation to be made for the lands thus taken, and awarded to James Outwater for land, dock, and buildings, *690$10,000; to Peter Outwater, for land and buildings, $5,000; and to J. S. Livingston, for the like, $3,500.
The company finding the awards much beyond their anticipation, altered the line of their road through Tivoli, and filed a new map pursuant to the fifth section of the act of 1848. By the new line, the company took from P. and J. Outwater only about half as much land and fewer buildings than by their former line. The new line embraced more land of Hr. Livingston.
P. Outwater, Jr: and J. Bowley, for P. and J. Outwater; and O. Immgston, for J. S. Livingston,
contended that the alterations made were not within the spirit of the act, which contemplated an entire new line of road. That the award settled the rights of the parties, and the company were bound to pay it, and perfect their first location, before they could make a new one. The award is founded on an implied agreement to submit the matter to commissioners, and is binding as a verdict. • The whole thing is in bad faith. It is an attempt by the company to avoid awards which are unsatisfactory to them, and to experiment on the rights of these parties with another set of commissioners. They also claimed, that the general railroad act of 1850 applied to the case; and that the owners of lands were entitled to be served with a copy of the petition to be presented to the court in these cases.
J. Thompson and O. O'Conor,
for the petitioners, referred to the case of Canal street, 11 Wend. 155, and Anthony street, 20 ibid. 620, also 18 Wend. 1. The title to the land is not changed, nor any right vested either to the land or the money, until the commissioners’ report is confirmed by the court, and the amount awarded is paid, as directed by the order thereupon made.
By the Court.
Where special acts of incorporation prescribe a particular mode of ascertaining damages for lands taken for these quasi public works, that mode is not affected by the general act of 1850 for the incorporation of railroads by voluntary asso*691ciation, which subjects all existing railroad companies to its provisions, where not inconsistent with those contained in their charters.
As to the principal questions discussed :
1. The company had an undoubted right, under the fifth section of its charter, to change and alter the line of their roadway, if the directors deemed it might be thereby improved, so as to take different land of the same owner, or a part of the same land that they had previously designated on their filed map.
2. ¡Neither the company have any vested or indefeasible right or title to the land mapped and sought to be taken, nor the owner any such right or title to the compensation therefor ascertained by the commissioners, until their report is filed and confirmed, and the order of the court made for the payment of the amount. Until then, the proceeding is incomplete, and it may be set aside or abandoned. If there be needless delay in the application to confirm the report, the owner can move the court on the subject. And if the proceeding be relinquished, the court, we think, has the power to indemnify the land owner in respect of his expenses.
We will, therefore, make an order appointing commissioners, on the company’s paying to these owners their expenses for witnesses and counsel on the former appraisement. We shall appoint the same commissioners that acted before, there being no allegation against the fitness of either of them.
Order accordingly.