instruments in books specially provided, and declares that they shall be absolutely void against creditors unless so recorded. To say that a chattel mortgage, which has been left for record but which is afterward returned to the owner unrecorded in fact, has, nevertheless, been recorded in contemplation of law, is to disregard the rlain meaning of the words used in the statute, and to arbitrarily construe them in such a way is to make the statute embrace a case not covered by it.

We do not, however, concur in the view, which seems to have been held by the vice-chancellor, that, by force of the provision of section 9 of the act, a chattel mortgage is void as against creditors until it is actually transcribed in the records. The seventh section of the act requires the clerk to enter, at the foot of the record, the time when the mortgage was received by him for record, and also to inlorse that time on the instrument itself. Manifestly, the purpose of this requirement was to advise persons who should inspect either the record or the mortgage itself of the time when the instrument was lodged for record, and no reason can be perceived for affording this information, unless it was intended that the record, when made, should relate back to that time; in other words, that the deposit of the instrument for record, and its transcription in the record, should be presumed to have occurred at one and the same time. It follows, therefore, that, as soon as a chattel mortgage is deposited for record in the clerk's office, it must be presumed to have been forthwith transcribed in the records; and that presumption continues so long as it remains in the office and until it is actually transcribed; and when that is done the presumption becomes conclusive. When, however, the mortgage 313 is taken away from the clerk's office without having been recorded, the presumption raised by the statute, being contrary to the fact, ceases to exist and the mortgage stands in the same condition, so far as creditors are concerned, as if it had never been lodged for record.

The decree appealed from should be reversed, except so far as it adjudges that the porgy jenny, the platform scale, the windlasses and the reel flyers are chattels, and therefore free from lien of the appellant's mortgage.

Tests for Determining What are Fixtures are stated in Gunderson v. Swarthout, 104 Wis. 186, 76 Am. St. Rep. 860; Thompson v. Smith, 111 Iowa, 718, 82 Am. St. Rep. 541; Canning v. Owen, 22 R. I. 624, 84 Am. St. Rep. 858; Fuller, Warren Co. v. Harter, 110 Wis. 80, 84 Am. St. Rep. 867. It is said in Baker v. McClurg, 198 Ill. 28, 92 Am. St. Rep. 261, that to determine the irremovable character of fixtures,

three tests are applied by modern authorities, viz.: 1. Actual annexation to the realty or some appurtenant thereto; 2. Application to the use or purpose to which that part of the realty with which it is connected is put; and 3. The intention of the parties making the annexation to make a permanent accession to the freehold. That the intention of the parties is a controlling consideration, see McFarlane v. Foley, 27 Ind. App. 484, 87 Am. St. Rep. 264; Edwards etc. Lumber Co. v. Rank, 57 Neb. 323, 73 Am. St. Rep. 514. The fact that chattels may be removed and sold for other uses, or that they were not made with special adaptation to the building in which they are placed, is not conclusive of the question whether they have become fixtures: Feder v Van Winkle, 58 N. J. Eq. 70, 51 Am. St. Rep. 628.

An Instrument is Recorded the moment it is lodged in the proper office for registration and the fees paid; Farabee v. McKerrihan, 172 Pa. St. 234, 51 Am. St. Rep. 734; Davis v. Whitaker, 114 N. C. 279, 41 Am. St. Rep. 793; note to Koch v. West, 96 Am. St. Rep. 403. As to the proper manner for recording a mixed mortgage, see the note to Koch v. West, 96 Am. St. Rep. 401; and as to the effect of recording a mortgage in the wrong book, see Cady v. Purser, 131 Cal. 552, 82 Am. St. Rep. 391; note to Koch v. West, 96 Am. St. Rep. 400.

CURRIE v. NEW YORK TRANSIT COMPANY AND NATIONAL DOCKS RAILWAY COMPANY.

[66 N. J. Eq. 313, 58 Atl. 308.]

EMINENT DOMAIN.-The Quantity of Interest which a railroad corporation obtains in land taken under the power of eminent domain is that which the statute conferring the power authorizes it to acquire; the legislature may authorize the taking of a fee, or any less estate, in its discretion. (p. 649.)

EMINENT DOMAIN-When Owner Retains no Interest.—If a Railroad Corporation takes land under the power of eminent domain conferred upon it by the general railroad law of New Jersey, it becomes vested with the whole present estate in the land, and the former owner retains no interest therein for the protection of which he is entitled to invoke the aid of a court of equity. (p. 652.)

Charles C. Black, for the appellants.

Collins & Corbin, for the respondents.

314 GUMMERE, C. J. The New York Transit Company laid an oil pipe line on the right of way of the National Docks Railway Company, with the consent of the latter. A part of this right of way was acquired by the Bergen Neck Railroad Company (to whose rights the National Docks Railway Company has succeeded) from the predecessors in title of the appellants by condemnation proceedings taken under sections 12

and 13 of the general railroad law-the Bergen Neck Railroad Company having been incorporated under that statute. The bill in this cause was filed to compel the removal of the pipe line from this portion of the right of way, the contention of the appellants being that they still retain, in the land condemned, such an interest as entitles them to prevent it from being used for any other than strictly railroad purposes, and that the Bergen Neck company only acquired by the condemnation proceeding "a right of way for railroad purposes over and across the land in question, leaving the fee therein, and in and to the soil thereof, vested in" the appellants.

On final hearing the bill of complaint was dismissed, on the ground that the appellants had no such interest in the land condemned as entitled them to interfere with the use to which it was being put by the respondents, even though such use was ultra vires the corporation. The complainants appeal from the decree of dismissal.

The extent of the interest acquired by a railroad corporation in lands condemned by it has been the subject of frequent discussion, and much variance of opinion has been expressed on the subject, not only generally but in our own decisions. In the 315 case Taylor v. New York etc. R. R. Co., 38 N. J. L. 28, Chief Justice Beasley says: "The fee in the land is not acquired by the company, but a mere easement in such land; the title remains in the owner, the property being made servient to the purposes of the railroad." In the case of New Jersey Zinc etc. Co. v. Morris Canal etc. Co., 44 N. J. Eq. 404, 15 Atl. 230, 1 L. R. A. 133, Vice-Chancellor Van Fleet declares that "where the state invests a corporation with the sovereign prerogative of eminent domain for the purpose of enabling them to construct and operate a public highway, and take land by force of their charter, or by any other means than by grants for the purposes of such highway, it is manifest that the plain purpose of the grant to them is not to give them capacity or invest them with power to acquire such an easement in the land as will enable them fully to accomplish the purpose for which they were created." On appeal to this court the Zinc company case was affirmed on the opinion of the vicechancellor Morris Canal etc. Co. v. New Jersey Zinc etc. Co., 47 N. J. Eq. 598, 22 Atl. 1076. In the case of Pennsylvania R. R. Co. v. Breckenridge, 60 N. J. L. 583, 38 Atl. 740, Justice Adams, delivering the opinion of this court, declares that a grant of power to condemn lands for railroad purposes "will

be construed to give merely the power to take an easement adequate to the accomplishment of the corporate design." On the other hand, in the case of De Camp v. Hibernia Mine R. R. Co., 47 N. J. L. 43, Justice Depue expresses the opinion that by condemnation proceedings an estate in the land itself was vested in the company and not a mere easement therein. So, too, Chief Justice Beasley, in the case of New York etc. R. R. Co. v. Trimmer, 53 N. J. L. 1, 20 Atl. 761, fifteen years after the delivery of his opinion in the Taylor case, changing the view expressed by him in that case, held that the interest acquired by condemnation proceedings was not a mere easement in the land, but such an estate as would support an action of. ejectment brought to recover possession of it. Again, in the late case of United States Pipe Line Co. v. Delaware etc. R. R. Co., 62 N. J. L. 254, 41 Atl. 759, 42 L. R. A. 572, Justice Depue, 316 delivering the opinion of this court, reiterated the view expressed by him in the De Camp case.

Notwithstanding that three of the decisions referred to are those of this court, the question presented by this appeal is not one to which the doctrine of stare decisis is applicable, for the reason that, the expression of view as to what interest in the land was acquired by a corporation by the exercise of the power of eminent domain was, in each of these cases, entirely obiter. In the New Jersey Zinc and Iron Company case, the land, which was the subject matter of the controversy, was claimed by the canal company not by virtue of any condemnation proceedings taken for the purpose of acquiring it, but solely by adverse possession for more than twenty years. . The same situation existed in the case of Pennsylvania R. R. Co. v. Breckenridge, 60 N. J. L. 583, 38 Atl. 740. In the United States Pipe Line Company case the question presented was the right of the pipe line company to lay its pipe across lands held by the railroad company, not by virtue of any condemnation proceeding but by conveyance.

The quantity of interest which a railroad corporation obtains in land taken by it under the power of eminent domain is that which the statute conferring the power authorizes it to acquire. The legislature may authorize the taking of a fee, or any less estate, in its discretion: United States Pipe Line Co. v. Delaware etc. R. R. Co., 62 N. J. L. 254, 41 Atl. 759, 42 L. R. A. 572; Sweet v. Buffalo etc. R. R. Co., 79 N. Y. 299, 300. It is manifest, therefore, that it cannot rightly be said, on the one hand, that nothing is ever acquired by such proceedings

except a mere casement in or right of way over the land condemned; nor, on the other hand, that something more than a mere casement, or right of passage over or through the land, is always acquired. For instance, in the charter of the Morris and Essex Railroad Company, under which the Delaware, Lackawanna and Western Railroad Company is operating its railroad in this state, and the provisions of which called forth the expression of opinion of Justice Depue in the United States Pipe Line Company case Lefore referred to, the declaration of the statute, in conferring the power to condemn land, is, that, upon the making of the award by the commissioners (or upon the rendition of the verdict by the jury on appeal from. the award), and "upon payment of the sum so found by the commissioners or by the jury, with costs, if any, the said corporation shall be deemed to be seisel and possessed in fee simple of all such lands and real estate," etc. (Pub. Laws 1835, p. 28); while the power conferred by the statute involved in the decision of the case of De Camp v. Hibernia Mine R. R. Co., 47 N. J. L. 43, is as follows: "That when any corporation formed under the provisions of this act shall take legal proceedings to acquire the right of way for its proposed railroad beneath the surface of the earth, such right of way shall not include the right to permanently use or occupy the surface of the earth immediately above such railroad, but shall be confined to a mere right to tunnel and excavate the earth for its tracks": Pub. Laws 1879, p. 167, sec. 3.

It needs no argument to show that the interest acquired in land by virtue of proceedings taken under the one statute is as widely different from that acquired from proceedings taken under the other, as would be the case were the interests obtained by deed or grant from the land owner instead of by the exercise of the power of eminent domain.

The extent of the interest which the National Docks Railroad Company has in the land involved in this litigation is that which the Bergen Neck Railroad Company was authorized to acquire by the provisions of sections 12 and 13 of the general railroad law. Section 12 of the act provides that, in case of the inability of the company to purchase land needed by it for the purposes of its road, commissioners shall be appointed "to examine and appraise the said land and assess the damages"; that such commissioners shall "proceed to view and examine the said land, and to make a just and equitable estimate or appraisement of the value of the same and an assess