77 N.J.L. 260 | N.J. | 1909
The opinion of the court was delivered by
The first three of the four writs that were argued together attack the order of Justice Parker appointing commissioners to condemn the lands of the estate of William Toothe, deceased, which are situate in the borough of Florham Park for the sewage disposal plant of the borough of Madison. By the other writ the borough of Madison seeks to set aside a deed for the said lands, made by the surviving executor of William Toothe and two of his devi-sees to the borough of Florham Park and the acceptance of such deed by said borough.
The situation disclosed by the testimony was this: The borough of Madison having taken the preliminary steps for the erection of a sewage disposal plant and filtration beds on lands late of William Toothe, deceased, located in the borough of Florham Park, applied to Justice Parker on July 11th, 1908, for an order appointing commissioners to condemn the said lands, which order was made on August 17th, 1908. Pending the negotiations that preceded this application a deed for the lands sought to be acquired in that proceeding was made by Edward S. Toothe, individually and as surviving executor, and by Carlotta T. Coe, a residuary devisee, to the borough of Florham Park. This deed, which was dated June 24th, 1908, acknowledged by Toothe and wife on that date and by Carlotta T. Coe on September 15th, 1908, recites that the grantors are the owners of lands in the borough of Florham Park, the future development of which is dependent upon the acquisition by the said borough
Without regard to the bona fides of the parties to the transaction we think that the conveyance itself did not charge the lands described in the deed with the public use designated in the statute. The plain meaning of the statute is that lands charged with one public use shall not be taken by condemnation for some other public use. The specific public use mentioned, viz., a municipal water-supply, can come into existence only in a designated manner. Pamph. L. 1906, p. 133. According to this legislative regulation a borough council may proceed to the acquisition of a water-supply plant only upon the written application of the owners of one-fourth of its assessed real estate; this application to be followed by advertisement and by the submission of the question
The three writs brought by the borough of Elorham Park and by individual prosecutors raise a very important question as to the validity of the proceedings on which the proposed condemnation was based, which since the argument of these cases has been definitively settled by the decision of the Court of Errors and Appeals in the case of Frelinghuysen v. Morris-town, filed February 4th, 1909, and not yet reported. The other objections require no extended discussion. The objection that there was no determination by Madison to acquire the Toothe location is not supported by the testimony. The inability of Madison to obtain the lands by ordinary purchase
The element of uncertainty in the precise course of the piping, &c., is not a .jurisdictional matter. The right of the prosecutors to stand in the shoes of the state board of health cannot be successfully asserted.
On the whole, our conclusion is that the order and proceedings brought up by the first three writs be affirmed, with costs, and that the fourth writ be treated as ad testificandum on which costs are not to be allowed to either party as against the other.