By section 4 of chapter 19 of the Laws of 1851 it is provided that in case any railroad shall occupy or cross any plank or turnpike road the railroad company shall pay such turnpike or plankroad company all damages sustained by reason of the occupancy or crossing of their road, the damages to be ascertained and paid in the same manner as is provided by law in cases for taking private property by railroad companies. This language plainly imports payment of damages before the taking of the property. Such has been the uniform construction in reference to taking private property. Before the land is to be entered upon, the damages must be appraised and deposited or paid, as provided, for by the law. This is in accordance with principles of justice. The owner should have the right to recover the compensation provided for by the Constitution and laws, before the property is appropriated to the public use. It is proven in this case that the plankroad is of little value and almost abandoned, but the question of the extent of the damages will be one for the commissioners to be appointed under the general railroad act to determine. The entry being a trespass, the continuing use of the plaintiffs road brings the case within the equitable powers of the court to prevent multiplicity of actions.
The judgment should be reversed and a new trial granted, costs to abide event.