19 N.J. Eq. 386 | New York Court of Chancery | 1869
The injunction applied for, is one to restrain the defendants from laying a second track of their railroad in a street in the village of Dover, in the county of Morris, called Dickerson
The questions raised are, whether Dickerson street has been dedicated to and accepted by the public so as to become a public highway, in which the right of the public can be protected by information; and whether if it had become a public highway, the defendants are not authorized by their charter to occupy it by their road. Also, whether the land which is occupied by the street, was not dedicated to the owners of lots fronting upon it in such way as to give them an easement or right to have it kept open for a way to its full width. And whether, if such easement does not exist, the complainant in the bill does not suffer an injury by narrowing the street in front of his lot and buildings, different from that sustained by the public at large, so as to entitle him to relief by a suit in his own name.
About forty years ago, the land occupied by Dickerson street and' the lots of the complainant and relators, and in fact by the greater part of the village of Dover, was owned by Henry McEarlan. He, about that time, laid it out into a village plot, by streets, which he had marked out on maps made of the village, kept in his office and exhibited to purchasers of lots. These streets, or many of them, were afterwards, from time to time, opened and staked out upon the ground, as it become necessary or useful for the sale of lots, or public travel.
The main street was Blackwell street, which ran nearly east and west, and was laid out seventy-five feet in width. Dickerson street was south ofj and parallel to Blackwell
Before McFarlan laid out the town plot, there was an old pmblic road running through it, which had once been a turnpike road, but which the turnpike company had abandoned, and which, by legislative authority, had become a public highway, which the proper public officers were hound to maintain and keep in repair. This road originally crossed the block between Warren and Sussex streets, north of Dickerson street, diagonally, and came into Dickerson street between Sussex and Morris streets, where, taking the direction of Dickerson street, it nearly coincided with it for three or four blocks, and then ran to the south of the range of Dickerson street. In 1848, the defendants constructed their road through Dover. Surveyors of the highways, who had
The information is based upon the claim that Dickerson street is a public highway, and was such before the grant to the defendants of September, 1848. It is shown by the depositions, and is not disputed, that for years prior to 1846, Dickerson street had been opened in front of the premises of the relators and the complainant, from Morris street to the west side of Warren street, and that it was used by the public as a street. It also appears from exhibits in the cause, that before 1848, the trustees of the McFarlan estate
Dickerson street in front of the lots in question, has become a public highway by being used as such by the public for more than twenty years. This was determined as sufficient in Holmes v. Jersey City, and in Smith v. The State, 3 Zab. 130 ; S. C., in the Court of Errors, Ibid. 712. It may be, that in order to make the township liable for the repair of this road, some other act of adoption by the proper authorities was
The adverse use and possession of the lands to be occupied by the new track can be of no avail. In the first place, depositing hoop-poles or other goods to be transported on their railroad upon the part of the public road adjoining their track, is no adverse use or possession; and, secondly, no adverse possession can affect the right of the public to a street or highway.
An obstruction or nuisance Lo a public highway is an injury to the public, for which an information in the name of the attorney general is the proper remedy.
It cannot be questioned, that the occupation of a public road by the track of a railway, operated by steam, effectually prevents the use of the part so occupied for the track by the public as a highway for ordinary travel, 11 r which these lands were dedicated, and for which ordinary roads are laid out.
The defendants claim, that they are authorized by their charter to lay their road along and upon, as well as across and over, public streets. This court, in the case of The Morris and Essex Railroad Co. v. Newark, 2 Stockt. 352, decided that this charter did not confer the right to lay" their track along and upon public streets, unless in a case of necessity, which is not pretended to exist here. The defendants, then, are not authorized by law to lay their track upon this street, and the injunction applied for by the information filed must be granted.
The bill filed by Byram Prudden presents the additional question, whether a suit can be maintained by an individual for a nuisance in a public road or street, because it narrows and obstructs the street in front of his premises. I am inclined to think- that there is in such case a special injury to the individual, different from that to the public at large. The lot of Mr. Prudden is occupied by a shop and dwelling-house. Besides the right of passing along the highway, he has the right of having wagons and vehicles of all kinds stand on the street in front of his premises for a sufficient time to load or unload, and to occupy for that purpose so much of the street as is necessary; provided, it does not obstruct or impede public travel. Every serious encroachment on the width of the street narrows this right, which is an injury only to him, and not to the public. Such encroachment has been held to be an injury to the individual, in several cases. Corning v. Lowerre, 6 Johns. C. R. 439; Spencer v. Lond. & Birm. R. Co., 8 Sim. 193; Sampson v. Smith, Ibid. 272.
In this case, Prudden has also a right by his purchase before the grant of 1848, to have this open to the full width. The public have adopted the street as a highway, and have not abandoned or vacated the right, and the right of Prudden by the dedication, therefore, cannot be destroyed. This is a right special to him, and not held in common with the public.
Whether, after an acceptance by the proper authorities, or
On either ground, Brudden is entitled to maintain a suit in his own name, and to have the injunction applied for in his suit.