41 N.J. Eq. 43 | New York Court of Chancery | 1886
The bill states that the complainants are, and have been for at least three years past, the owners in fee of a lot of land at the corner- of Elizabeth avenue and Butler street, in the city of Elizabeth, on which are two houses and a barn; that the defendants have begun to build in that city a railroad for cars to be drawn by steam locomotive engines, which is to run from the defendant’s land near Smith street (which is the next street parallel to Butler street on the southeast) through and upon Smith street to Elizabeth avenue; thence along and upon the avenue to Butler street, and in front of the complainants’ land, to a point about one hundred feet from the corner of that street and the avenue; and that the complainants’ property has a frontage on Butler street of about one hundred and thirty-five feet, and on Elizabeth avenue of about seventy-six feet. The defendants’ property is on the opposite corner of the avenue and Butler street. The bill alleges that if the road be constructed as proposed, it will be laid upon the land of the complainants in front
The complainants’ land is bounded in their deeds therefor on two sides by the side lines of Elizabeth avenue and Butler street, respectively. By legal presumption they own the land in front of their property to the middle of the street, subject to the right of way.
The imposition of the burden of a railroad operated by steam, upon the latter land (in and constituting part of the street) is a taking of their property for that purpose, and it cannot be lawfully taken for such use, if private, without their consent. Nor can it be lawfully taken for such use if public, without due compensation. Starr v. Camden and Atlantic R. R. Co., 4 Zab. 592; Hinchman v. Paterson Horse R. R. Co., 2 C. E. Gr. 75.
The defendant company is not a railroad company, but is a manufacturing firm called the Elizabethport Cordage Company, and the other defendants are the individuals who compose that firm. They have no authority to lay and operate the road except that given by the city ordinance before mentioned. In Montgomery v. Trenton, 7 Vr. 79, the city of Trenton had given permission by ordinance to certain persons to lay for their private use a railroad track at grade across a public street. It was held that the city had no authority, under the general power in its charter to regulate streets, to make the grant. But by the charter of the city of Elizabeth the city council has power not only to pass ordinances to regulate the streets - but also to grant to corporations or persons the right to lay down railroad tracks in the streets, highways and alleys, and to regulate the running of cars thereon,