Beal agt. N. Y. C. and H. R. R. Co.

been taken for a public use, so long as that public use is continued there can be no reversion to the original owner.

C. W. White, for plaintiff.

D. M. R. Johnson, for defendant.

WILLIAMS, J.-The first question is, what estate passed under the decree or order in chancery from plaintiff to the railroad company? Was it an easement or a fee? If it be conceded the term of existence of the railroad corporation was fixed at fifty years, this fact would not have restricted the corporation from taking a fee (Nichols agt. The N. Y. and E. R. R. Co., 12 N. Y., 121-128).

The question seems to be, what interest in the property the charter of the railroad company provided should be vested in or conferred upon the corporation.

The counsel for defendant argues, from the language of the charter this interest was a fee, and cites from Wood's Railroad Law (vol. 2, p. 764) the proposition:

"The question as to whether the charter authorized the taking of a fee or an easement is one of construction to be determined by the courts, in view of the language used in the act giving authority to take it, and of the purposes for which it was taken."

The counsel for plaintiff seems to rely mainly upon Heard agt. The City of Brooklyn (60 N. Y., 242), and String agt. The City of Brooklyn (68 N. Y., 1). These two cases, so far as the question we are examining is concerned, were practically the same. The question involved was what estate a railroad corporation took in lands appropriated by it under its charter (chap. 256, Laws of 1832), and it was held to be an easement and not a fee. A reference to the case in the 60th New York does not show this question was discussed at all by the court. RAPALLO, J. writing the opinion, merely says: "By the proceedings for the acquisition of the lands in question, under the act incorporating the Brooklyn and Jamaica Railroad Company

Beal agt. N. Y. C. and H. R. R. Co.

(Laws of 1832, chap. 256), the company became entitled only to the use of the land for the purpose of operating its railroad; the fee remained in the original owners, subject only to that use, and on the discontinuance of the use the owners were entitled to resume possession of the land."

In the 68th New York, FOLGER, J., writing the opinion upon the subject says: "The decision of this case in the 60th New York was put fairly upon the ground that whatever interest the railroad company had in the lands in suit had ceased, and that on that cessation the plaintiffs were entitled to resume possession, that the fee remained in the plaintiffs, and that the right of the railroad was a right to use for the purpose of operating its road and no more. The appellant here strives to make out that the lands were not taken for a mere right of way or other easement, but that there was an appropriation of the lands; an examination of the charter shows that the railroad company was authorized to appropriate the lands, but only for its own use, for the purpose contemplated by the charter. That purpose was to maintain and continue a railroad for fifty years over a designated route. All the legal proceedings for the taking of the lands show that such was the appropriation made, and that the damages were assessed for such an appropriation. The right of appropriation was given and exercised, but it was only for a use, limited in time and in kind or purpose. Having held before in this case that the purpose and use for which the appropriation was made, and for which the damages were assessed and paid, had ceased by the acts of the railroad company, we will adhere to that decision until reason for change is shown in a new state of facts."

Referring to the act incorporating the railroad corporations in these two cases (chapter 256 of Laws of 1832), we find it provided by section 16 that in case the corporation should not be able to acquire the title to the lands by purchase or voluntary session, it should be lawful for it to appropriate so much of the lands as should be necessary to its own use for the purposes contemplated in this act; by section 17 it should present to the

Beal agt. N. Y. C. and H. R. R. Co.

vice-chancellor a petition, among others things praying for the appointment of appraisers to assess the damages which the owners would sustain by reason of the appropriation thereof by the corporation to its own use; by section 19 the vice-chancellor should appoint three disinterested freeholders for the purpose of assessing such damages; by section 20 the appraisers should proceed by viewing the lands, and by such other evidence as the parties might produce before them to ascertain and assess the damages which the owners would sustain by an appropriation of their lands for the use or accommodation of such railroad or its appendages; by section 21 the appraisers should make a report to the vice-chancellor, among other things specifying the damages which the owners would sustain by reason of the appropriation of their lands for the purposes aforesaid, and the vice-chancellor might modify the assessment as should appear just; by section 22, on payment of the damages thus assessed, with the expenses of assessment, or depositing same in bank directed by vice-chancellor, the corporation should immediately become entitled to the use of the lands for the purposes aforesaid.

These provisions of the charter would seem to leave no doubt but a mere easement was given the corporation by this act The counsel for plaintiff here claims this charter and the charter of the Utica and Schenectady Railroad Company (chapter 294, Laws of 1833) are substantially alike. If they were, I should have no difficulty in holding the plaintiff never parted with the fee in the premises in question.

By the charter we have here to interpret, it was provided the corporation might purchase and receive donation of, and hold such real estate as was necessary or convenient, and it should be lawful for it to enter upon, take possession of and use all such lands as might be indispensable for the construction and maintenance of the road, but all lands which were not donations should be purchased, and at a price to be mutually agreed on, and in case of a disagreement as to price, application might be made to the court of chancery, and persons should be appointed to appraise

Beal agt. N. Y. C. and H. R. R. Co.

the lands (not the damages for the use of them) and the appraisers should award to the owners what they should deem to be the full value of the lands and upon payment of this appraisal (the full value of the lands) and all expenses of the appraisal, the decree or order should be made.

So far it seems to me every word of the charter points to the acquiring of the fee in the lands, and not an easement merely. It is said the corporation may have the land, but it must purchase it if not donated, and it must pay on such purchase a price to be agreed on, and only in case of disagreement as to price are appraisers to be called in, and then they are to appraise the lands and to award to the owner the full value thereof. Upon payment of the full value, practically the price fixed by the appraisers on account of the inability to agree on the price to be paid upon a purchase, was it not intended the corporation should acquire the fee to the property? Any other construction, it seems to me, would be unjust and unreasonable. The only difficulty, if any, in assenting to this construction, arises from the remaining provision in regard to the matter, viz., when the decree or order should be recorded the corporation should be possessed of the lands for the purposes of the road, and might enter upon, take possession of, and use them.

This language, standing alone and not read in connection with the provisions heretofore referred to, would not seem to imply the interest acquired was a fee or anything further than an easement for railroad purposes. I think, however, when this language is read with that before it, the whole is consistent and implies a fee, and not a mere easement, was intended by the charter to be acquired. It will be seen the provision at first was that it should be lawful for the corporation to take possession of and use all lands that were indispensable. This language has, however, connected with it a "but" condition, which must first be complied with before the corporation could so take possession of and use the lands. This condition was a purchase at a price, and the statute then goes on to provide for fixing the price at which the purchase could be made. And finally, hav

Beal agt. N. Y. C. and H. R. R. Co.

ing made provisions for all the conditions, the but in connection with its first statement that the corporation might enter upon and use the lands in compliance with all the provisions, it is finally again, in substantially the same language, provided that the corporation might take possession of and use the lands.

I am unable to perceive how the cases relied upon by plaintiff's counsel afford us any precedent for the construction of the charter we are here considering, and I am unable to arrive at any other conclusion but the one favorable to the defendant in this question, that the corporation acquired a fee and not a mere easement, in the premises in question, under and by virtue of the decree or order of the court of chancery.

The case cited and discussed by counsel upon both sides of this case (Terry agt. The New York Central and Hudson River Railroad Co., 67 How. Pr., 439), was in many respects entirely like the one we are here considering. It was unlike this case, however, in that the railroad corporation which originally appropriated the lands in suit, the Tonawanda Railroad Company, had a charter entirely unlike the charter of the Utica and Schenectady Railroad Company, and one under which an easement, and not the fee, was clearly acquired (see chap. 241, Laws of 1832). It was a charter containing the same identical provisions as to the acquisition of lands as those in chapter 256 of laws of 1832, which are heretofore given in considering the cases in the 60th and 68th New York. This case was tried at the Genesee circuit in September, 1884, and, so far as I am aware, the decision there made has never been reversed, overruled or criticised. It was against this same defendant, and judge HAIGHT held the plaintiff to be the owner in fee of the lands in suit, but subject to a public use for railroad purposes, and the time such use should continue was within the discretion of the legislature and not confined to the fifty years, which was the term of existence of the corporation that acquired the lands prescribed in its charter; that such use had not as yet ceased and determined, and therefore the plaintiff could not recover.