[Browning v. Camden and Woodbury Railroad Co.]

county of Gloucester, and to run to some point at the town of Woodbury, in said county, distant about eight miles, with as many sets of tracks or rails as they may deem necessary; and that it is in and by the said eighth section made lawful for the said president and directors, their agents, superintendents and others in their employ, to enter at all times upon all lands or water, for the purpose of exploring, surveying, levelling or laying out the route or routes of such road, and of locating the same, doing no unnecessary damage to private property; and that when the route of such road should be agreed upon and filed in the office of the secretary of state, it is thereby further made lawful for the said company, by its officers, agents, engineers, superintendents, contractors, workmen and other persons in their employ, to enter upon, take possession of, hold, have, use, occupy and excavate any such lands, and to erect embankments, bridges and all other works which may be necessary or suitable to call into full effect the objects of said charter; that there is a proviso or condition contained in the said section, by which it is provided that the said corporation shall pay or make tender of payment of all damages for the occupancy of the lands through which the said railroad may be laid out, before the said company, or any person in their employ, shall enter upon or break ground in the premises, except for the purpose of surveying said route, unless the consent of the owners of such land be first had and obtained.

That in and by the ninth section of the said act, it is further provided, that if the owners of the land on which said railroad shall be made, shall not be willing to give the same for such purpose, and the said company and owners cannot agree as to the price, it shall be the duty of any judge of the inferior court of common pleas of the said county of Gloucester, who is disinterested in the premises, upon the application of either party, and after hearing the parties, to appoint three disinterested freeholders of said county as commissioners to assess the price or value of said land, and to assess the damage which any individual or individuals may sustain by said road; and the said commissioners are thereby directed and required, after giving notice to both

[Browning v. Camden and Woodbury Railroad Co.]

parties of the time and place of meeting, to meet and view the premises and hear the parties, and therein to make such decision and award as to them shall seem just and proper, and transmit such award and decision, together with a description of the said land and the quantity taken, by whom owned and how situated, bounded and described, in writing under their hands and seals, or under the hands and seals of a majority of them, to the judge who appointed them, to be by him returned and filed, together with all the papers before him relating thereto, in the clerk's office of the county, there to be kept as a public record, and copies taken, if required by either party; and it is in and by the said ninth section further enacted, that if either party shall feel aggrieved by the decision of such commissioners, the parties so aggrieved may appeal to the inferior court of common pleas of the county, at the first or second term after the decision of the commissioners, by proceeding in the form of petition to the said court, with notice to the opposite party of such appeal, which proceeding shall vest in the said court of common pleas full right and power to hear and adjudge the same, and that if required, the said court shall award a venire in the common form, for a jury before them, to hear and finally determine the same, and that it shall be the duty of said jury to assess the value of said land and all damages sustained.

That the complainant permitted the said company and persons in their employ peaceably to enter upon his land for the purpose of surveying, laying out and locating said road, and that they entered thereon and located their road over and across his land without molestation or hindrance; that the said road is located across the most valuable part of the complainant's farm, and through his peach orchard; that the surface of the land is much higher than the intended grade of the road at that point, and that a ditch of between seven and eight feet deep will be necessary, so that the complainant's land, to a considerable extent, will have to be excavated and removed, and the peach orchard destroyed, in order to construct the road; that the route and location of the road across the complainant's farm is such as to cut off from his farm a valuable piece of land of a triangular

[Browning v. Camden and Woodbury Railroad Co.]

shape, which will be thereby rendered valueless to the complainant, and other lands of the complainant will be much injured and greatly lessened in value by the construction of said road.

That the complainant had frequently proposed to sell his land to the company for a reasonable price, and less than his estimate of the value of the land and the damages occasioned by the construction of the road, but that the company have refused to accept his offer, and that they cannot agree as to the price of the lands.

The bill further states, that the complainant being unable to agree with the said company for the price of his land, on the twenty-fourth day of August, eighteen hundred and thirty-six, a judge of the court of common pleas of the county of Gloucester, on the application of the company, had appointed commissioners to assess the value of the land wanted by the company, and damages under the act; that the commissioners had met and viewed the land in the presence of the officers and agents of the company, but in the complainant's absence; that the commissioners having viewed the premises, adjourned to meet at a subsequent day, of which the complainant had notice; that the complainant then attended and proved by two witnesses that the value of his land and damages was at least one thousand dollars, and by a third witness that the said value and damages were fifteen hundred dollars, and that to the complainant's knowledge, no witness was produced on the part of the company before the commissioners; that the commissioners assessed the value of complainant's land at one hundred and six dollars, and his damages at three hundred and sixteen dollars, making in the whole for his land and damages, four hundred and twenty-two dollars, which is not one third the value of his land and damages; that the complainant, according to the provisions of the act of incorporation, appealed to the inferior court of common pleas of the county of Gloucester, from the decision of the commissioners, and gave to the company due notice of the appeal; that the appeal is still pending undetermined in the said court, and that no assessment of the value of the complainant's land and of his damages has yet been made by a jury,

[Browning y. Camden and Woodbury Railroad Co.]

according to the provisions of the act of incorporation; that the complainant verily believes that much larger damages will be assessed by a jury than were awarded by the commissioners, and that before the said appeal can be tried the company will prove insolvent, so that if they are permitted to proceed in excavating and carrying away the complainant's land, he will sustain great and irreparable injury, without the possibility of redress.

The bill further states, that the boundaries and description of the complainant's land are not set out in the decision and award of the said commissioners as they ought to be, and that the quantity of land therein stated to be taken by the said company is incorrect, and much less than is actually taken.

The bill further charges, that a contractor of the company, with a number of laborers, on the first day of February instant, tore down the complainant's fences and commenced excavating and carrying away his land, and that they still continue so to do, without the said company, before entering on the complainant's land, paying or making tender to the complainant of all the damages for the occupancy of his said land, and without the consent of the complainant first had and obtained; that the entry so made by the company upon the complainant's lands was not made for the purpose of surveying the route of the road, but for the purpose of making and grading the same; admits that the company have tendered to the complainant the sum of four hundred and twenty-two dollars awarded by the commissioners, but denies that they have tendered to him all his damages sustained by the occupancy of the said land for the purpose of the said road.

The prayer of the bill is, that the company may pay to the complainant the damages he will sustain by the construction of the said road through his land, and that in the meantime, the said company, and their engineers, contractors, &c., may be restrained and injoined from committing further waste upon the complainant's land, and from entering upon and carrying away the same, and that the complainant may have such further and other relief as may be agreeable to equity, &c,

[Browning v. Camden and Woodbury Railroad Co.]

Upon filing the bill an injunction was issued as prayed for. The defendants, by their answer, filed on the twenty-ninth of April, eighteen hundred and thirty-seven, admit many of the material allegations contained in the bill of complaint; but they deny that he ever offered to sell his land to the company, at any price; that the value of the land and damages as awarded by the commissioners is inadequate, or that a larger sum will be assessed by a jury; that there is any defect in the description of the complainant's lands contained in the award of the commissioners, or that the amount therein stated is less than the quantity actually required; and that the said company is insolvent or likely to become so. They allege that before entering on the complainant's land for the purpose of making or grading the road, they tendered to him the value of his land and damages, as awarded by the said commissioners, which he refused to accept, and that they are still willing to pay the same. They insist that the bill contains no equity; that the matters in dispute have been tried by the commissioners; that they may be tried again before the court of common pleas upon the appeal, pursuant to the provisions of the act of incorporation, or are otherwise triable at law, and that the complainant is entitled to no relief in equity.

A separate answer was also filed by James Smith, the contractor by whom the excavations upon the complainant's land were being made, stating that the work was done by him, by order and under the direction of the railroad company; that he had no interest in the work except as a contractor, and that in making the excavations and grading the road, no unnecessary damage was done to the complainant's land.

Upon filing the answer, notice was given by the defendants of a motion to dissolve the injunction.

The cause came on for hearing upon the motion to dissolve the injunction.

R. L. Armstrong and Wall, in support of the motion.

Browning, Jeffers and Southard, contra.