148 A. 171 | N.J. | 1929
Speaking in general terms, the claim of the relator is that the state highway commission has taken and is taking certain of relator's property without making any compensation therefor; and the alternative writ awarded and which relator seeks to have made peremptory, is directed to requiring that state agency to institute and prosecute the appropriate proceeding for the ascertainment and payment of such compensation. Haycock v.Jannarone,
The facts are simple enough. The prosecutor owns a block of land in Newark fronting on the southeasterly side of London street, formerly named Dresden street, and bounded southerly by Wilson avenue, formerly Hamburg Place, southeasterly by Paris street, formerly Frankfort street, and northeasterly by Niagara street. On the southerly half of this block stands relator's factory, fronting in part on London street; the northerly half of the block is vacant land. A new state highway runs from northeast to southwest, occupying London street, and some additional width on the farther or northwesterly side thereof; and for engineering purposes the grade of the new highway is set considerably higher than the former level of London street, in part on an embankment supported by a twenty-one foot retaining wall, and partly on a concrete viaduct resting on columns twenty-three feet high; the nearest face of this structure being about three feet from the outside wall of relator's factory. The general effect of this is to impair if not substantially destroy, access to the relator's property on the London street front at the old level and to compel resort for that purpose to the new level and the other fronts. It is plain also that, as usual in such cases, the enjoyment of light and air is greatly diminished.
In our opinion, under well-settled rules, the case is one ofdamnum absque injuria. The law is clear, and conceded by counsel for relator to be, that in this state there is no right vested in the owner of land abutting on a highway to recover damages for a change of grade in the absence of a statute giving that right. Clark v. Elizabeth,
The cases of the New York elevated railways and similar structures are cited for relator. They are readily distinguishable, and the distinction has often been pointed out. It is, in short, the difference between a burden imposed for the benefit of a business corporation (affected no doubt with a public interest), and a purely public use. Barnet v. Johnson,
Broadly stated, the common law seems to be that a change of grade in a public highway with its incidental features of interference with former advantages of light, air and access enjoyed at the old grade, is not a taking of property in the legal sense (Willets Manufacturing Co. v. Freeholders,
This, we think, is enough to dispose of the main ground for the application. Certain minor points are suggested but *29
require no lengthy discussion. We consider only those appearing on the face of the alternative writ. In addition to the main point discussed, they are: (1) a new sewer which "endangers the foundation of relator's buildings." It is not stated that any harm has resulted or is resulting therefrom. (2) Destruction of a wagon scale in London street. What right relator had to maintain such a structure in a public street does not appear. As to alleged trespass on land of relator, and injury by settlement of the building, they appear to be legal torts outside of a taking of property for the highway, for which the contractor may be responsible, and not within the rule of Haycock v. Jannarone,supra, but rather within that of Whitla v. Ippolito,
Finally, the relator, anticipating that respondent will urge that the commission has never lawfully acquired jurisdiction over London street and that mandamus should be refused for that reason, argues that inasmuch as it has taken property of relator and as a state agency is admittedly not subject to a common-law action for damages therefor, a writ should go to compel it to acquire the necessary status and take proceedings to appraise and pay for the property thus appropriated.
The respondent in its brief makes no such claim as is suggested; but if the lack of jurisdiction be admitted, and if, as is quite possible, relator would then be entitled to apply to this court to direct the commission to acquire jurisdiction over the state and proceed to condemn any property taken, it would then appear, as it now appears, that no "property" will have been taken in the legal sense, and the writ would thus be a mere gesture, because of the absence of res on which to operate.
There will be a judgment for the respondent on the demurrer. *30