Opinion
07-30-1890
POMONA BRANCH R. CO. v. CAMDEN & A. B. CO.
Mr. Morgan and Mr. Richey, for complainant. Mr. Pancoast, for defendant.
Mr. Morgan and Mr. Richey, for complainant. Mr. Pancoast, for defendant.
BIRD, V. C. The complainant having failed to agree with the defendant as to the amount of damages which the former should pay to the latter upon crossing its lands, the former procured the appointment of commissioners to condemn the lands of the defendant. The commissioners, having met upon the grounds proposed to be condemned, made their award, by which it was adjudged that $5 should be paid to the defendant for the lands taken by the complainant, and $100 for damages which the defendant would sustain. Immediately after the award was signed by the commissioners, they delivered it to the attorney of the complainant, directing him to file it in the county clerk's office very soon thereafter. But, before it had been delivered to the clerk, the complainant tendered to the defendant the $105 so awarded. The defendant refused to accept it, its treasurer, to whom the tender was made, saying: "I refuse to accept it; you may pay it into court." The attorney of the complainant then carried the award to the clerk's office, and, when he handed it to the clerk to be filed, the attorney of the defendant, being present, gave notice to the attorney of the complainant of an appeal from such award. The complainant insists that it has taken all the steps necessary as required by law to enable it to proceed with the construction of its road, notwithstanding the appeal from the award of the defendant. It claims that when an award has been made, and a tender of the amount so awarded to the land-owner before an appeal is taken, the statute is complied with, and the company, in every such case, will be protected in entering upon the lands so condemned, and is not obliged to await a final determination of the case on appeal. The defendant resists such construction by casting up an embankment and placing a side track thereon, upon which it keeps a number of cars with a large force of men who are instructed not to allow the complainant to enter upon the lands of the defendant.
In the first place I cannot consider that the offer of the amount awarded before the award was filed was of any consequence. It seems to me that upon principle the papers signed by the commissioners fixing the amount due to the defendant has no binding force or effect upon any one until they become a matter of record by actually filing them with the clerk of the county. Until such act of filing, the work of the commissioners necessary for the constitution of the award was not complete. It then becomes in the nature of a judgment or decree, and not until then. This being so, it cannot be said that the tender was made before the appeal contemplated by the statute was taken. But if it be admitted that the tender was a lawful one, and binding, yet it seems very clear to me indeed that the statute does not mean to favor the party who, perchance, may be able to speak first after the award is signed. It contemplates a reasonable time for action. And this is the view taken by Vice-Chancellor VAN FLEET in the case of Johnson v. Railway Co., 45 N. J. Eq. 454, 17 Atl. Rep. 574.
In my judgment the material question is whether or not the defendant is to be considered a land-owner in view of the statute, and of the construction put upon the statute by Vice-Chancellor VAN FLEET in the case referred to. If it be such landowner, then it is entitled to be heard upon appeal, the same as every other land-owner, before the complainant can enter upon the lands in question and appropriate them to its own use. The vice-chancellor regards this as the true interpretation of the statute, and in my judgment he is right. The chancellor has also taken the same view of the law in the case of Currie v. Jersey City, etc., Ry. Co., without writing an opinion. From the decree in this case there was an appeal, and the chancellor was affirmed. If any opinion was delivered in the court of errors, so far as I can learn, it has not yet been published. I understand that the chancellor had under consideration the question of time during which notice of an appeal might be given, and that it was his opinion that a reasonable time for that purpose should be allowed. Clearly, therefore, the defendant gave its notice in due time. And since the complainant has treated the defendant as such land-owner, and proceeded against it under the statute, for the purposes of this case I think I will be justified, if not required, in disposing of the question before me, also to regard the defendant as a land-owner. See State v. Railroad Co., 36 N. J. Law, 181. Perhaps I ought to add that I can see no aspect of this case that satisfies my mind that this court is the proper forum in which to determine the question in dispute. On this point there was no discussion by counsel. The end sought to be reached by this bill is the possession of lands. Such an issue, under our theory of administering the law, is usually decided upon an action of ejectment in the common-law courts. The case is a very different one from those in which the owner resists the violent encroachment and appropriation of another by injunction. In such case it is the only remedy by which he can save his inheritance from destruction. This is exemplified in the cases of Johnson v. Railway Co. and Currie v. Jersey City, etc., Ry. Co., supra. Nor is it a question in which the manner of crossing or any other use of the land or tracks is to be regulated by some judicial tribunal. The bill in this case presents nothing more than the claim of a right to the immediate possession and enjoyment of the use of the land in question in common with the defendant. I submit that such claim cannot be considered in this court because made by one railroad company against another company any more than such claim made by one individual352against another. I will advise that the order to show cause be discharged, with costs.