105 N.J. Eq. 222 | N.J. Ct. of Ch. | 1929
The town of Montclair purchased a strip of land adjoining complainant's store and premises, and laid out Park street from Bloomfield avenue southerly to the next street, Church street, and as a result the complainant's property became a corner lot — the southeast corner of Bloomfield avenue and Park street. The new street is but forty-five feet wide, the length of complainant's lot, and from the rear of its lot to Church street it has a width of eighth-eight feet. When the street was laid out in 1924 the ordinance provided for a seven and one-half foot sidewalk on either side of the street. The town put down a wooden curb, with cinder filling for a sidewalk, on complainant's side. The owners of property on the westerly side of the street built stores facing the street and put down cement pavements eleven feet wide. The town then negotiated with the complainant for its property, to widen the street, but upon a referendum the voters rejected the ordinance to purchase, and it was later repealed. Efforts were then had to acquire a portion of the complainant's lot, but they have been unsuccessful. In this impasse, and to meet the pressing demands of vehicular traffic at this point, the town, in 1927, passed an ordinance reducing the sidewalk on the complainant's side, along its lot, to a width of eighteen inches, and on the opposite, the west side, to seven and one-half feet. The bill is to restrain the town from carrying the ordinance into effect, on the ground that its execution will deprive the complainant of an easement in the sidewalk without just compensation, and that the ordinance is oppressive and was adopted in bad faith.
The issues raise purely legal questions. The town authorities are acting lawfully, not tortiously, pursuant to a duly enacted ordinance, authorized by law (Home Rule Act, Cum. *224 Supp. Comp. Stat. p. 2194), and if the ordinance invades the complainant's right it has an adequate remedy at law bycertiorari. The supreme court is the established tribunal for the supervision and correction of official proceedings of municipalities of the state. Tucker v. Burlington,
Irreparable injury, an equity jurisdiction, is not present. The ordinance opening Park street, with a sidewalk along the complainant's lot, thereby creating a corner lot, obviously added vastly to the value of complainant's property, and the intended cutting down of the width of the sidewalk will, to some extent, diminish this. The complainant acquired no vested right in the sidewalk as against the state or the town. The town gave and the town may take, under the law. Kean v. Elizabeth,
Equity, of course, may intervene in case of fraud, but it will refrain from exercising its jurisdiction if relief may be afforded at law. Commercial Casualty Insurance Co. v. SouthernSurety Co.,
The bill will be dismissed. *226