The opinion of the court was delivered by
Isham, J.This action is brought to recover damages which were appraised by commissioners, for taking the plaintiff’s land for the use and construction of the Vermont Central railroad. The survey of the road was made on the 4th of June, 1847, and was *43recorded in the town clerk’s office, on the 5 th of August in the same year. The appraisal of damages by the commissioners was made on the 5th of January, 1849, and was recorded on the 6th of February, afterwards. No appeal having been taken within ninety days, as limited by the 8th section of the charter, that appraisal has become conclusive as to the amount of damages sustained, and, if the plaintiff is entitled to recover, will prevent any further litigation of that matter.
It appears from the case also, that in February, 1850, the defendants changed their line of road by locating the same on other land than that of the plaintiff, and upon which their road has been constructed. That alteration of their line of the road has superseded the necessity of taking the plaintiff’s land on -which the road was first surveyed. The right of the corporation to change the line of their road is given them by the 15th section of their charter, which provides that if the directors of that company, for any cause, shall deem it expedient, they may change the location of such parts of their road as they shall deem proper. That change in the line of their road, however, will operate as an abandonment of their former survey on the plaintiff’s land, so that the company can no longer claim any right or interest in the land itself, or to any easement growing out of it, in consequence of that survey having been made. That doctrine has been expressly held in Massachusetts, in relation to highways. Commonwealth v. Westbarough, 3 Mass. 406, and Same v. Cambridge, 7 Mass. 163, and the same effect, we think, will follow in cases of this character. The result is, that the plaintiff retains his land free from any incumbrance arising from that location or survey of the road. That abandonment of the line of the road over the plaintiff’s land, however, does not necessarily supersede his claim for damages. The right to recover those damages, whether liquidated by the agreement of the parties or by commissioners, is not necessarily defeated by that act of the company. If the land has once been taken, if the company for any period of time, have been seized and possessed of the land so appraised, or if the plaintiff has had, at any time, a perfected right to the damages awarded by the commissioners, a subsequent abandonment of that location, and the establishment of a new line for the road, will have no effect to defeat the plaintiff’s claim for *44the damages which have been awarded to him. Westbrook v. North, 9 Greenl. 179. Hampton v. Coffin, 4 N. H., 517. Harrington v. Comrs. of Berkshire, 22 Pick. 267. Hawkins v. Rochester, 1 Wend. 53. Under such circumstances the plaintiff would be entitled, on the abandonment of that location, to the land free from any incumbrance of that character, and also to the damages which were allowed to him.
The important question in the case therefore arises, whether the Vermont Central Railroad Company have ever been seized or possessed of this land of the plaintiff's, and for which the award of the commissioners was made; or has the plaintiff ever had a vested right to the damages which were awarded on that survey of the road. The determination of these questions depiends upon the construction which is to be given to the 7th section of the charter of this company. We obviously can derive but little aid on this subject from adjudged cases in other states, unless they have arisen upon some statutory provision, embracing substantially the specific provisions of that section of this charter. By that section it is provided, that when land or other real estate is taken by the corporation for the use of their road, and the parties are unable to agree upon the price of the land, the same shall be ascertained and determined by commissioners, together with the charges and costs accruing thereon, and upon the payment of the same, or by depositing the amount in a bank as shall be ordered by the commissioners, the company shall be deemed to be seised and possessed of all such lands as shall have been appraised. This provision is quite specific in stating what act on the part of the corporation vests in them a right to the land. They derive no title to the land or any easement growing out of it, from the fact of their having surveyed the road across the plaintiff’s land, or having placed that survey on record, nor by having the damages appraised by commissioners, and causing their award to be recorded. The statute is express, that the payment or deposit of the money according to the award must be made before any such right accrues. Until that payment is made, the company have no right to enter upon the land to construct the road or exercise any act of ownership over the same. A court of equity would enjoin them from exercising any such right, or they might be prosecuted in trespass at law. The survey and appraisal of *45damages are merely preliminary steps to ascertain the terms upon which the land can be taken for such purposes, if the company shall see fit to use the same for the construction of their road. If it is accepted, and the company conclude to take the land, that acceptance, and that taking is consummated only by a payment or deposit of the money, for the use of the owner of the land, as awarded and directed by the commissioners. The case of the Baltimore & Susquehanna R. Co. v. Nesbit et al., 10 Howard 395 is very decisive on this question. In that case land was taken by the company under a charter granted by the state of Maryland'. Under a provision in their charter, the damages were assessed by a jury, and that assessment was confirmed by the court. In that case, as in this, the road was located, and the damages conclusively determined and settled, so that no further litigation could arise on that matter. In that case, as in this also, the charter provided, that the payment, or tender of payment of such valuation should entitle the company to the estate or land as fully as if it had been conveyed. The charter of that company and of this, in all particulars important upon this question, are substantially similar. The court remarked, “that it is the payment or tender of the value “ assessed by the inquisition which gives the title to the company, “ and consequently without such payment or tender, no title could, “ by the very terms of the law have passed to them.” They further observed, “that it can hardly be questioned, that without “ acceptance in the mode prescribed, the company were not bound; “ that if they had been dissatisfied with the estimate placed upon “ the land, or could have procured a more eligible site for the loca- “ tion of their road, they would have been at liberty, before such “ acceptance, wholly to renounce the inquisition. The proprietors of “ the land could have no authority to coerce the company into its “ adoption. The same doctrine was sustained in the case of Bloodgood v. Mohawk & Hud. R. R. Co., 18 Wend. 10, 19. In that case the company were authorized to enter upon the land and make such examinations and surveys, as were necessary to determine the most advantageous route for the road, and to take the same for that purpose; provided, that all land so taken shall be purchased by the company of the owner, and in case of a disagreement as to the price or value of the land, commissioners were to be appointed *46to determine tlie same, and upon payment of such damages with the costs, or depositing the same in a bank in the city of Albany, then the corporation shall be deemed to be seized and possessed of the land so appraised. It will at once be perceived, that the provisions of that charter are not only similar in this respect to that of the Vermont Central Kailroad Company, but that they are expressed in very similar language. The chancellor remarked “ that this provision “ should be considered in the nature of a condition precedent, not “ only to the acquisition of the legal title to the land, but also “ to the right to enter and take the permanent possession of the “ land for the use of the corporation.” It is very clear, from these cases, that as the Vermont Central Kailroad Company have never paid or deposited the amount of that award of the commissioners for the benefit of the plaintiff, as ordered by them, that the company have never acquired any right or title to the land appraised, or to any easement growing out of it; and that none can now be acquired under those proceedings. The abandonment of that location, and the adoption of a new route, and the construction of their road thereon, will prevent the acquisition of any such title, or the perfection of any such right.
It is insisted, however, that though the corporation have no right to the land, and have never been seized or possessed of the same, yet that the plaintiff, under the provisions of that act, has acquired a vested right to the damages awarded by the commissioners, and that that right became vested in him when the award was made, and recorded. The statute requires “ that the commissioners shall “ determine the damages which the owner of the land may have sus- “ tained, or shall be likely to sustain by the occupation of the same for “ the purposes aforesaid.” The actual taking and occupation of the same for such purposes is the foundation upon which the binding character of that award is made to rest. It is those circumstances which the commissioners are to take into consideration in ascertaining the amount of damages. If, therefore, the land has never been taken by the company in a manner in which they can legally occupy the same, no damages have arisen, or can arise from that cause. When the corporation obtains a vested right to the land, or to the easement, the landholder has a vested right to the damages; that specific act which vests the right in them, gives also *47a vested right to the owner of the land. These respective rights are correlative, and have a reciprocal relation; the existence of one depends upon the existence of the other. If the corporation have no vested right to the land, the owner of the land has no vested right to the price which was- to be paid for it. This is the very ground upon which the cases were sustained, to which we were referred in the 2 Greenl. 179. 4 N. Hamp. 517, and 1 Wend. 53. Two of these cases were in assumpsit, and the other in debt for the recovery of a sum awarded for land taken for similar purposes. The landowner was allowed to recover his damages, and was treated as having a vested right to them; as a vested right to the easement in the land had been acquired, for which those damages had been given as a compensation. That is also the doctrine of the case in the 10 Howard 395, for on that ground alone was sustained the constitutionality of the act of Maryland, in causing to be vacated the first appraisal, and ordering a new inquisition to be taken. As there has been no payment or tender- of the damages assessed, there was no vested right to the land, and for that reason the act was held constitutional in vacating the first inquisition. On the same ground, and for that reason specifically assigned, the court in the case of Harrington v. Berkshire, 22 Pick. 267, granted a mandamus to enforce the payment of damages awarded to the landholder. The road had been laid, the title to the easement under their statute had vested, and for that reason, the party had a vested right to the damages awarded. We know of no case, neither have we been referred to any, in which such damages have been recovered, or in which the owner of the land has been considered as having a vested right to the same, when the corporation had acquired no right to the land, or to an easement growing out of it. There is no propriety or consistency in saying, that the plaintiff shall recover this compensation for land which has never been taken or purchased from him; that this company shall pay for a right or an easement, which they never had, and which they never could legally enjoy. If the line of this road had been so varied as to run over another portion of the plaintiff’s land, it would hardly be contended that he would be entitled to a double compensation; yet such would be the result if this action can be sustained.
The cases in England have no definite bearing upon this subject, *48nor are they in conflict with the construction we have given to the provisions of this charter. In that country, generally, the railroad is located, and its courses definitely defined, when the application is made to parliament for a charter. When a charter is granted, it is based upon that location, - and authority is granted to to take that specific land for that purpose. The owner of the land is required to specify the sum he demands for it, and if not assented to, inquisition is to be made to determine the value of the land. Burkinshaw v. Birmingham & Oxford Railway Co., 5 Eng. Law & Eq. Rep. 492. Under those charters it has been held, that if no inquisition is made, the company are bound to pay the sum specified, and not only has payment been enforced by mandamus, but the company have, by the same process, been compelled to carry into effect all the powers delegated to them by their charter. Blakemore v. Glamorganshire Canal Navigation, 1 Mylne & Keene, 162, 163. Regina v. The Eastern Counties R. Co., 10 Adol. & Ellis, 531. Regina v. The York and North Midland R. Co. 16 Eng. L. & Eq. R. 299. That doctrine, however, has since been overruled in the exchequer chamber, to which the last cited case was carried on a writ of error. York and N. Midland Railway Co. v. Regina, 18 Eng. L. & E. R. 206, 207, 208. Those charters are now treated as conferring conditional powers to take the land on making compensation for it. The observations of Jervis, Ch. J., in the last case, are very ajipropriate and applicable to the rights of the parties under this charter: “ The “ company may take land; if they do they must make full compen- “ sation. The words of the statute are permissive, and only impose “ the duty of making full compensation to each landholder, as the “ option of taking the land of each is exercised.” This case as well as the case of Burkinshaw v. The Birmingham and Oxford R. Co. 4 Eng. L. & E. R. 489, establishes the correlative and reciprocal relation existing between the right of the company to the land, and the right of the owner of the land to the damages awarded. If the land has been taken in such a manner as to vest in the company a right to the use and occupancy of it, compensation is to be made; but no right to such compensation can exist, where the land has not been taken.
The authorities, upon the questions involved in this case, we *49think, are more than ordinarily clear and decisive, and fully establish the principle, that the plaintiff has no claim to these damages, as the land has never been taken, or occupied by the corporation for the purposes mentioned in their charter; and that the payment of the money as awarded by the comissioners is necessary, and is to be treated as a condition precedent to the right of the company to the land, or to any easement growing out of it.
The result is that the judgment of the county court must be reversed, and the case remanded.