69 N.J.L. 168 | N.J. | 1903
The opinion of the court was delivered by
This writ is brought to review the appointment of commissioners made in proceedings to condemn lands of the plaintiffs in certiorari, at the village of Ridge-wood, in Bergen county, for the purpose of establishing a right of way for the traction railway of the defendant company. The proceeding is taken pursuant to the act entitled “An act to authorize the formation of traction companies for the construction and operation of street railways, or railroads operated as street railwajrs, and to regulate the same,” approved March 14th, 1893, and the acts supplementary thereto. Pamph. L., p. 302; Gen. Stat., p. 3235.
The portion of the defendant's line involved in these proceedings approaches said village from the line of Midland Park on the west, and, after crossing Goodwin avenue and Monroe street, in said village, passes in a northeasterly di
When the petition and affidavit were filed with the justice, pursuant to the statute, and notice duly given to the plaintiff, who was the owner and occupant of the premises, as directed in the order assigning a day for the hearing, the jurisdiction of the court over the subject-matter was complete, and no subsequent conveyance to another could defeat the proceeding. This rule is in accord with the adjudications and fulfills the plain object of the act. The sixth section prescribes that when such a company files with the secretary of state a description of the route and map exhibiting the same, with the courses and distances thereof, it shall thereby secure the exclusive right to build the road within the period limited. The thirteenth section enacts that upon the filing of the survey of such location or locations of such right of way, then the company, upon payment or tender of such compensation as is fixed in the condemnation proceedings, may enter upon and occupy the lands so surveyed and proceed to construct such right of way, &e. From the filing of the survey and map a pre-emption to the lands embraced therein exists in favor of the company, which ripens into a vested right under the proceedings to condemn. Morris and Essex Railroad Co. v. Blair, 1 Stock. 635; American Transportation Co. v. New York, Susquehanna and Western Railroad Co., 30 Vroom 156. In National Railway Co. v. Easton and Amboy Railroad Co., 7 Id. 181, in proceedings to condemn, under charter provisions similar to these, Mr. Justice Depue said: “The subsequent transfers of the legal title by conveyances made after the proceedings were commenced by presenting the application cannot impair the regularity of the proceedings which were then in conformity to the law.”
It is contended, however, that the act of 1900 (Pamph. L., p. 79) applies, and that the doctrine suggested is inapplicable because of the third section of this act, which requires a lis pendens to be filed along with the petition in order to bind persons acquiring interests in the property pendente lite. But this act, which is a revision of previous acts, with added provisions, does not repeal or modify any part of the act of 1893, under which these proceedings were had. Many reasons for this conclusion might be given, but the fact that the legislature, on the same day the revision was enacted, passed an act repealing sundry acts covered by the revision, in which no reference is made to the Street Railway act of 1893, is quite convincing. Pamph. L. 1900, p. 78.
It is further contended that before the right to condemn could be lawfully exercised, the company must have first obtained the consent of the municipality to the construction of its railway over and upon the streets of the village within the line of its survey. This consent is made a condition precedent to the construction of its railway in the streets, but not to the condemnation of lands to secure its right of way through private property. We are not referred to any authority for this proposition, and the opposite of this contention was held under similar proceedings in Union Pacific Railway Co. v. Colorado Postal Telegraph Cable Co., 69 Pac. Rep. 564. It was suggested that Hampton v. Clinton Water Co., 36 Vroom 158, might apply, but it is not in point.
Another objection urged is that the location, on file is invalid because, for a portion of the line not involved in the application, the survey includes two alternative routes. But