Niagara Falls & Lake Ontario Railroad v. Hotchkiss , 16 Barb. 270 ( 1853 )

Harris, J.

Upon the consummation of the proceedings prescribed by the railroad act, it is declared that “ the company shall be entitled to enter upon, take possession of, and use the land for the purposes of its incorporation.” And all persons who have been made parties to the proceedings shall be divested and barred of all right, estate and interest in such real estate. The company required no legal process to put them in possession. The statute was their warrant for entering upon the land. The owners, having been made parties to the proceedings, were divested and barred of all their interest. They had no longer a legal right to keep the company out of possession. In resisting the agents of the company in their attempt to take possession, they were guilty of an unlawful act.

But I cannot see that, because the owners of the land have been guilty of an unlawful act in resisting the agents of the company, the company is therefore entitled to legal process to prevent such resistance. It is the right of the company to occupy the land; and if the owners see fit to use force in preventing such occupation, they are amenable to the law for their unlawful conduct; and, besides, the writ of possession or assistance is always awarded in execution of the decree or judgment of the court. In this case, there has been no such decree or judgment. The statute, not the court, has declared the rights of the parties. It is the statute, and not the judgment or decree of the court, that authorizes the company, without suit, to take possession of the lands. It would certainly be a novel thing for this court to issue an execution to enforce a right which it had never declared by its judgment, and which it had no authority to declare.

If the company should find itself unable to resist the force which would prevent its exercise of the legal right which the statute confers, of taking possession of and using the land, it may be that, in an action brought for that purpose, the owners might be restrained by injunction from such interference. But upon this question, I need not express an opinion. It is enough, upon this application, to say, that the court has no power to award any process to aid the company in securing to itself the possession and use of the land. The motion must therefore be denied; but it is without costs.

[Niagara Special .Term, June 6, 1853.

Harris, Justice.]