79 N.J.L. 548 | N.J. | 1910
Tlie opinion of the court was delivered by
The commissioners of assessment for local
improvements in the city of Newark made an award for damages to certain landowners arising from the vacation of several public highways; among them were George T. Hatt, Addison Brown, Charles F. Kilburn and Walter D. Osborne. The mayor and common council of the city of Newark being dissatisfied with the award, removed the proceedings to the Supreme Court by writ of certiorari, in which court the award to the aforesaid landowners was set aside, which judgment was brought here on error by Kilburn and Osborne, the other owners not joining in the writ. The facts shown in the record are that Lawrence street in Newark, previous to these proceedings, was a public highway connecting Hamilton street with Mechanic street, and that Osborne and Kilburn owned
The charter of the city of Newark (Pamph. L. 1862, p. 333) provides that when the city shall determine, by ordinance, to vacate any street, “and any land will be damaged by such vacating,” the damages, if the city and owner cannot agree, shall be ascertained and awarded by commissioners appointed for such purpose. In the present case such award was made, and is now here under review. The record shows that the commissioners allowed damages to Osborne and Kilburn, estimated to result from the vacation of Lawrence street to the extent it was vacated, and also from the elevation of the roadbed of the railroad on their own land immediately adjoining the Kilburn tract, and across Lawrence street. The Supreme Court set aside the award upon two grounds, first, because the commissioners awarded damages which they estimated to result to the land from the elevation of the railroad, and second, that the lands not abutting on the vacated poj'tion of the street were not lands which “will be damaged by such vacating” of the street within the meaning of the statute.
The right of the state to destroy public improvements of this class without compensation is not -limited by the constitution, and except for the statute, as expressed in the charter of the city, this street could have been vacated without the slightest consideration of its effect upon airy land lying along it, or the pa3ment by the city of compensation to any landowners for damages. But this statute requires the city to ascertain, by agreement, or appraisement by commissioners, the extent to which any land will be damaged by the vacation of a street, which damage the city is required to pay to the owner. It is not such damage as the owner may suffer in common with the public, but the impairment of the value of the land caused by the vacation of the street.
The question now presented is whether land abutting on a public highway over which access may be had to it from intersecting streets at each end of the' block in which it is located, “will be damaged,” within the meaning of our statute, by the vacation of a portion of the abutting street, so that direct access to it from one of such intersecting streets is prevented, although the land does not adjoin the part vacated, but only abuts upon a cul-de-sac created by the vacation; or are lands so affected not damaged in such peculiar or special manner as to justify the ascertainment and awarding of damages for the consequent impairment of their value? In Massachusetts the latter rule seems to have been adopted. In Smith v. Boston, 7 Cush. 254, suit was brought by a landowner for damages claimed to have resulted from the vacation of a portion of Market street. Some of the land was on Market street,
In City of Chicago v. Burcky, 158 Ill. 103, the Supremo Court of Illinois had before it a case similar to that at present under consideration. There the plaintiff owned lands abutting on a street extending from one intersecting street to another, and tlie city vacated a part of that portion of the street, hut not the part upon which plaintiff’s land abutted, tlie vacated part, however, beginning at the corner of plaintiff’s land, as in this case. In determining that the plaintiff had a right of action the court said: “What was originally a thoroughfare along the entire line of plaintiff’s property, fronting on Sixty-first street, was by the action of the town fumed into a blind court. Yo other property was damaged or affected in the same way. * * * The property
In re Melon Street, 182 Pa. St. 397, it. was held that although the land alleged to be damaged did not abut on the vacated portion of the street, the effect of the vacation was to create a cul-de-sac, and therefore the land was subject to special damage, and the owner entitled to compensation therefor.
In Dodge v. Pennsylvania Railroad Co., 16 Stew. Eq. 351, the complainant filed his bill to restrain the Pennsylvania Railroad Company from obstructing Green street with an embankment at a point where it had been vacated for the purpose of allowing the company to, elevate its railroad. The questions raised there are not pertinent to this issue, and the case is referred to only because it is relied upon by the defendant in error.. But whatever may have been said by the court in deciding that case must be read in connection with the fact stated in the opinion that plaintiff’s title was not to lands “in that part of Green street, extending both north and south of the lands conveyed to the two next adjacent cross streets, but in that part of Green street which lay entirely beyond the two next adjacent cross streets,” thus showing that access to it was not restrained to a cul-de-sac.
In Kean v. Elizabeth, 25 Vroom 462, it appeared that Schiller street crossed York street, on which prosecutor’s land was located, between the land of the prosecutor and the vacated portion of York street, and the proceeding was to test the power of the city to vacate; no question of damages was presented,- and in this court on error (26 Id. 337) the opinion of Chancellor, then Mr. Justice Magie, is confined to the question of the power of the city to pass the ordinance under review.
There is nothing to be found in the adjudged cases in this state inconsistent with the view that the right of the public in an open highway is of passage over it, and that this right the abutting owner has in common with the public, and suffers in common with it when deprived of such right by an obstruction to that use, and that there is in addition to this,
The judgment under review is reversed.
For affirmance — The Chief Justice. 1.
For reversal — The Chancel loe, Trenohard, Bergen, Vooehetcs, Minturn, Bogert, Vredenburgh, Vroovi, Gray, Dill, Congdon, JJ. 11.