In most of the legislative acts making .provision for the appropriation of lands by rail-road corporations, the lands to be appropriated are specifically described by the order of some judicial tribunal, and the damages which the owner will sustain by the appropriation of the lands so described are to be assessed by a jury or board of appraisers. In such case if the lands had been described in the judicial order by metes and bounds, without reserving any easements to the owner, and the jury or appraisers had qualified or clogged their appraisement with certain easements or rights to be enjoyed by the owners,- in addition to the pecuniary damages, I think it would be apparent that damages in such case were assessed upon wrong principles, and the assessment would be set aside. (Queen v. Co. for S. Holland Drainage, 8 Adol. & E. 429.)
The act under which the present assessment is made has not precisely such provisions. There is no preliminary judicial order in this case made necessary. The act (Sess. Laws of 1838, 193, § 5,) provides that the corporation shall present a petition to a county judge, “describing the lands required” by said corporation. This is all the provision made for the description of the land, which the rail-road corporation are to take and which the jury of appraisers are to appraise. In the proceedings before us we are not informed how the lands are described in the petition. We do not know whether they are described merely by metes and bounds, or whether any easements or privileges are contemplated to be reserved to the owners or not. We do not therefore know what precise lands the jury are called upon to appraise. The same and the two following sections make provision for the appointment of a jury of appraisers. By the 8th section it is made the duty of such jury to view the premises “so proposed to be taken,” (that is, *211proposed by the petition,) and to hear evidence, and they are to assess the value of the land so proposed to be taken, and the damages the owners thereof may sustain, &c.
By the 9th section, such jury of appraisers are to make a certificate “specifying with all convenient certainty the several tracts of land proposed to be taken by the said corporation,” with the names of the owners, amount of damages awarded, &c. By the 11th section, the rail-road corporation upon paying or depositing the damages awarded, are to become seized and possessed of the lands described in the certificate of the appraisers.
Thus all these several consecutive provisions refer to the petition of the corporation for a description of the lands proposed to be taken, and this petition is not returned to us so that we can know how the lands are described. The corporation are, at the termination of the proceedings, to become seized and possessed of the lands described in the certificate of the appraisers. When we look to this description as contained in the return to the certiorari, we find a description by metes and bounds, and then after mentioning the damages awarded, describing certain easements, rights or reservations as excepted from the lands thus described. Is not this a part of the thing described to be taken? Do not these reservations and exceptions form part of, and qualify, the previous description of the lands by metes and bounds? If the corporation are to become seized and possessed of the lands described in the certificate of the appraisers, must they not take these lands thus described subject to the easements, reservations and exceptions mentioned in the same certificate ?
It is very evident that the corporation can take no larger interest than that described in this certificate; and they will' therefore take subject to the easements and reservations mentioned in said certificate. That is, so far as such easements and reservations are concerned, the owner does not part with, but retains his title, and the corporation takes the remainder of the interest in the land, that is, the right subject to such easements and reservations, and it is this interest which is ap*212praised. If it was intended that the corporation should take the lands free from any such easements and reservations, it is the corporation that is injured by this departure from the original intention, and not the owners. They have not been injured, for this particular portion of or interest in the real estate has not been taken from them. For what has been taken payment has been awarded, and it is not competent for us to say that the damages so awarded are insufficient.
It is urged that the jury exceeded their powers in excepting such easements and reservations. It is possible they did ; but I do not know that fact with certainty. How do we know but what the land "was described in the petition of the company as proposed to be taken by them subject to such easements and reservations 1 As the jury are in effect required to describe the lands in their certificate as they were described in the petition, we are perhaps bound to suppose that they have done so; and therefore to believe that the corporation proposed to take these lands subject to such easements and reservations. It seems to me that we are bound to believe this, or that 'there was a mutual agreement between the corporation and owners at the time of the appraisal of damages which is incorporated by the jury into their certificate qualifying the interest which the corporation was to take. I do not think that in either of such aspects there is any error to be corrected, and am of opinion the proceedings and verdict of the jury should be affirmed.
Inquisition set aside.