Visscher vs. The Hudson River Railroad Company, 15 Barb. 37

By the Court, Parker, J. The defendants were incorporated by

an act of the legislature passed May 12,1846, and amended by the act of February 10,1848. These acts constituted the defendants’ charter. The land in question was regularly taken by the defendants, under the special provisions of such charter, five commissioners having been appointed from the state at large, in August, 1850, by whom the damages were appraised. All the steps necessary to perfect the defendants’ title, according to the provisions of such charter, were duly taken. I.

But it is claimed by the plaintiff that the proceedings to obtain the title to the land should have been under the general railroad act passed April 2,1850. That act prescribed a different mode for the appointment of commissioners ; and the 49 th

section required as follows: [Sess. Laws of 1850, p. 235;) “ All existing railroad corporations within this state, shall, respectively, have and possess all the powers and privileges contained in this act; and they shall be subject to all the duties, liabilities and provisions not inconsistent with the provisions of their charters, contained in sections,” &c. It is contended by the plaintiff that under this clause the defendants ought to have proceeded to acquire the title to the land in question, in the mode prescribed by the general railroad act, and not according to the special provisions of their charter.

These modes of proceeding were essentially different. Under the charter, a notice to the party was' to be served or published ten days. The supreme or superior court were to appoint commissioners of their own selection, and from the state at large. The roadway might be of any width required, and on filing the report of the commissioners, the court, on proof of payment or deposit of the money, made a rule reciting the proceedings, which was recorded and operated as a deed to the company. Under the general railroad act four weeks’ publication was to be made. The supreme court in the district had sole jurisdiction.

Each party nominated six commissioners, from whom the court selected two from each side, and appointed the fifth commissioner ; and the commissioners were all required to live in the county where the land was situated. Notice was tó be given of an application for an order confirming the report, and an appeal was authorized, and twenty days were allowed for appealing. The roadway was limited, under the general act, to ninety feet in width.

Here are two systems, entirely inconsistent, it seems to me, the one with the other. “Consistent” means compatible, con-' gruous, standing together or in agreement. (Webster’s Die.) The two modes of assessing damages and obtaining title are incompatible, incongruous, and cannot stand together or in agreement. They are entirely unlike. The requirements of the general act are not additional to those of the charter. They cannot be engrafted upon the charter. On the contrary, they would change entirely the mode of proceeding.

The test on the question of “inconsistency,” is this: Can the requirements of both the charter and the general act be followed out and complied with in one case ? It is clear that they cannot, because they are different. Existing railroad corporations were to be subject to the general railroad act only when the provisions of that act were consistent with the provisions of the charters of such corporations; when not consistent, they were to remain unaffected by the general act. . Where, as in this case, there were special provisions entirely different, the general act was not consistent with such provisions'.

The clause in question was intended to apply to a great number of railroad corporations, which had been previously created, or the utility of which had been declared, without any special provisions, but with reference to the general railroad act of 1848, (Sess. Laws of 1848, p. 221,) which was materially modified by the later general railroad act of 1850.

In the general act of 1848, after declaring, in the 46th section, that all existing railroad corporations, within this state shall respectively have and possess all the powers, and be subject to all the duties, liabilities and provisions contained in that act, so far as they shall be applicable to their present condition, and not inconsistent with their several .charters, it was provided as follows: “ All railroad companies that are now constructing their roads, may acquire title to any lands necessary for that purpose under the provisions of this act.’1' But this privilege was entirely omitted in the general railroad act of 1850, though the first part of the

section is retained, and is the same which the plaintiff now claims to be applicable. If it had been supposed to be applicable, by the legislature of 1848, the latter clause would not have been inserted. And its omission in the act of 1850, indicates very plainly the intention of the legislature to confine existing corporations, in acquiring title to land, to the modes specially provided by their charters. This same question was decided by the superior court of the city of New-York, in general term, in The Hudson River Railroad Company v. Outwater, (3 Sandf. Sup. C.

Rep. 689,) in which case it was held that the proceedings to acquire title to land must be had under the charter, and not under the general railroad act. Upon this point therefore, I think the defendants are right, and that there was vested in them the title to the land on which it is claimed the trespasses have been committed. II. The second question is whether the plaintiff can avail herself of the facts that an order was made at special term setting aside the proceedings, and that the court, at special term afterwards, on motion, refused to set such order aside.

From the first order, an appeal was taken to the general term, but the court held there that no appeal would lie, and intimated also that there was probably no authority whatever to make the order appealed from. The court has certainly no jurisdiction, in these railroad cases, to supervise or correct the doings of the commissioners, unless it is specially conferred by statute; and the statute has conferred no power whatever on the court, to entertain a motion to set aside such proceedings.

It is like the case “ In the matter of Mount Morris Square,” (2 Hill, 14,) where it was held that in confirming or setting aside reports of commissioners of estimate and assessment, in New-York street cases, the court exercises only a limited jurisdiction, which ceases the moment an order is made, one way or the other; and consequently a motion to set aside such order, either on the merits or because of irregularity, cannot be entertained. The game principle had been previously asserted and acted upon in Stafford v.

The Mayor of Albany, (6 John. 1; 7 Id. 541;) in the Matter of Beekman-street, (20 Id. 269,) and in the Matter of Canal-street, (11 Wend. 154.) [Albany General Term, February 7, 1853. Parker, Wright and Harris Justices.] As the court acted without jurisdiction, in setting aside the rule, the order was a nullity, and being wholly void might be impeached collaterally. (Bigelow v.

Stearns, 19 John. 39. 1 Hill, 130. 2 Id. 159.) If the proceedings to obtain title were in strict accordance with the requirements of the defendants’ charter, as they are admitted by the pleadings to be, and if the defendants were right in following the directions of their charter, instead of those contained in the general railroad act, as we have above held they were, then the defendants’ title became perfect on filing and recording the rule of court made on the certificate of the commissioners, and on the deposit or payment of the moneys.

The charter declares, (Laws of 1848, p. 41,) that “ upon the entry of such rule, the said corporation shall become seised in fee of all lands, real estate and property described in said rule, &c. <fcc. and may take possession of, hold and use the same,” &c. When such rule was regularly made and entered, the power of the court, conferred by the statute, was, I think, exhausted.

But whether it was so or not, it is clear that the title once vested could not be divested by the subsequent action of the court, any more than an order of the court setting aside a record of a deed, on motion, could divest a title derived under and by virtue of the deed. I think the demurrer is well taken, and that the defendants should have judgment.