64 N.J. Eq. 588 | New York Court of Chancery | 1903
This is a petition filed by the Mercer County Traction Company for the purpose of having this court fix a method by which its road shall cross the road of the Pennsylvania Railroad Company at Yardville. The present road was organized as an extension of another road, also known as the Mercer County Traction Company, running from Allentown to Yardville. The present ■road starts from the terminus of the former road and runs one thousand four hundred and sixty-two feet northerly. The United Yew Jersey Railroad and Canal Company, lessors, and the Pennsylvania. Railroad Company, lessees, of the road to be crossed, challenge the power of this court to act upon the petition. The objection to the jurisdiction of the court is put upon the ground that the conditions essential to equip the petitioner with a legal existence have not been performed.
The incorporation of the petitioner seems to have been under section 6 of the act of 1893, which provides for the extension of an existing railway. The first objection is that the railroad of which the petitioner pretends to be an extension, namely, the road of the original Mercer County Traction Company, itself had no legal existence. The evidence offered by the petitioner, in respect to the organization of that road, is a certificate of incorporation, dated January 19th,. 1899, recorded in the office of the clerk of Mercer county July 31st, 1899, and filed in the office of the secretary of state on the same day; also a location of the route of the road and a map, filed December 7th, 1899; also an ordinance of the township committee of the township of Hamilton granting permission to the said company to lay its road along.the highway indicated in the description and shown on the map of its route, an acceptance by the company and the officers of the company, filed January 23d, 1900, and also the written consents of certain owners of land abutting on the highway.
The evidence offered in respect to the organization of the road of the petitioner is a description of the road, with a map attached, filed in the secretary of state’s office on August 23d, 1901; an ordinance of the township committee of the township of Hamilton granting permission to use the highway; acceptances by the company and the officers of the company of the
It is insisted that the existence of the original road is not proved, because the consent by the township to the laying of the original road was invalid, in that there was not filed with the township clerk the consent in writing of the owner or owners of at least one-half in amount, in lineal feet, of the property fronting on the street or highway upon which the road was to run.
The act controlling this matter is to be found in P. L. of 1896 p. 329. This act provides that no street railroad shall be constructed upon any street or highway except upon the consent of the governing body of such municipality, town, township, village or borough., The act contains a proviso, as follows:
“That such permission to construct, maintain and operate a street railway shall in no case be granted in whole or in part until there shall be filed with the clerk of such governing body, or other equivalent officer, the consent, in writing, of the owner or owners of at least one-half in amount, in lineal feet, of property fronting on the streets, highways, avenues .and other public places, or upon the part of the street or streets, highway or highways, avenue or avenues and other public place or places, through or upon which permission to construct, operate and maintain a street railway is asked, and any such consent may be signed by an attorney in fact thereunto duly authorized by any owner, or by an executor or trustee holding the legal title or having power of sale, which consent shall be executed and acknowledged as are deeds entitled to be recorded.”
It is first objected that.it does not appear that those purporting to give their consents, filed in the township clerk’s office, owned the requisite number of feet required by the statute; and it is objected, secondly, that the consents are not executed in accordance with the statutory requirements'—the statute requiring that the consents shall be executed and acknowledged “as are deeds entitled to be recorded.”
In respect to the absence of proof that those who signed the consents owned the requisite number of lineal feet, nothing appears but the statement in the written consents of the number of feet owned by each consenting owner. As the filing of the requisite consent was a condition precedent to the power of the township committee to pass the ordinance, I think that the fact of the passage of the ordinance should be regarded as evidence
The remaining objection, however, is based upon what appears in evidence, viz., that the consents which were filed were neither sealed nor acknowledged as sealed instruments. The statute requires that the consents shall be, not merely acknowledged, but shall be executed “as are deeds entitled to1 be recorded.” The word “consent” includes those made by the owner himself, as well as those made by his attorney in fact, or by an executor or trustee holding the legal title or having a power to sell abutting lands. How, it is common learning that one of the requisites of a deed is a seal. The grant of an easement requires a seal. It is, of course, true that equity can treat an unsealed instrument, purporting to be a deed or. grant, as an agreement creating an equitable interest in, or a lien upon, the land which is the subject-matter dealt with by the imperfect instrument. That rule, however, is inapplicable in this proceeding; for while the method of crossing is put by the legislature under the supervision of a court of equity, yet one. of the statutory conditions upon which the right of the trolley road to cross is that the petitioning road has not merely the consent of a certain proportion of abutting owners, but that the consents shall be evidenced in a form fixed by the statute. To make these consents provable the statute requires that they shall be executed and acknowledged as deeds. These were not. And so the filed consents were not provable as such; and, at the time of the passing of the ordinance granting permission to the original traction company, the condition was as if no legal consents had been filed with the clerk. It follows that it is not proved that a legal road existed, of which the present road is an extension.
It is also objected that consents should have been filed with the county clerk as a condition precedent to the granting bjr the board of chosen freeholders of Mercer county permission to place this road upon a macadamized county road. The act of 1894 provided that no street railroad shall be constructed upon a street or highway in a municipality, town, township, village or borough except upon the consent of the governing body of such municipality. It provides that such consents shall not be granted by the governing body of any sxich municipality, &e., until consents by a certain proportion of lineal feet owned b3r abutters upon the road shall have been filed in the office of the clerk of the municipality, &c.
The act of 1896 (P. L. of 1896 p. 329) clearly supersedes the act of 1894, as it covers all its provisions respecting consents. This act provides that no street railroad shall be constructed upon any street or highway in any city, town, township, village or borough except upon the consent of the governing body of such municipality, town, township, village or borough. The act then provides for the consent of the abutting owners, in the manner already exhibited.
It is perceived that the word “city” is substituted in the act of 1896 for the word “municipality” in the act of 1894, and when the word “municipality” is afterwards used, followed by the other specified instances, the word undoubtedly refers to
It seems entirely clear that the consent of the abutters is required to be- only once given, namely, before the municipal authorities, mentioned in the first section of the act of 1896, grants its permission. The provision for the consent of the abutting owners is referable to the action of the governing body of cities, towns, townships, villages and boroughs. The only condition attached to the granting of the latter permission is that notice shall have been given in the same manner as provided for in the first section.
While expressly providing for the same notices, it is entirely silent as to any consent of abutting owners in the manner required in the first section. The express requirements of notice, coupled with silence in regard to consent, excludes the idea of an absurd requirement that two consents of the same abutting owners shall be executed and filed before a valid grant of permission can be given by the county.
It is again objected that there is, no compliance with the statutory requirement that, before the beginning or construction of any extension or new trolley line, the corporation shall file in the office of the secretary of state a description of the route of
These conclusions still leave wanting the provable consents by the abutting owners to' the laying of the road, of - which this is an extension.
There is, however, offered in evidence the record of a proceeding upon certiorari, in which the Pennsylvania Railroad Company was prosecutor and the petitioner was a defendant. The writ seems to have brought up the ordinance passed by the township committee of Hamilton township' giving the petitioner permission to lay its road upon the highway within the township. This ordinance was adjudged by the supreme court and the court of errors, upon a writ of error, to' be a valid ordinance.
This judgment would conclude the two parties mentioned in any proceeding brought directly to test the validity of that ordinance. The doctrine of res judicata, however, differs when applied to a new proceeding for the same, or part of the same, cause of action, and when applied to a different cause of action. In the former instance, everything that could have made for the plaintiff or for the defendant is settled by the first judgment. In the latter instance, only those issues actually presented and decided are concluded. City of Paterson v. Baker, 6 Dick. Ch.
In North River Meadow Co. v. Shrewsbury Church, 2 Zab. 424, an action of debt was brought to collect an assessment imposed upon lands belonging to the church. The meadow company, in support of the assessment, put in evidence the record of a proceeding in certiorari, prosecuted by the church, to test the legality of the assessment. In this proceeding the assessment had been held to be legal. The supreme court held that, in the subsequent action to collect the assessment, the church was estopped from asserting that the assessment was invalid. It was so held upon the ground that the reasons assigned by the church for vacating the assessment in the certiorari proceeding embraced all the points suggested on the trial of the later action. It is true that, in the certiorari proceedings brought to test the ordinance in this case, general, as well as special, reasons were assigned for its vacation; but the court was not obliged and, under its practice, would not notice the former, and, in fact, did not do so.
Inasmuch as the want of filed consents by the abutting owners was not assigned as grounds of objection to the ordinance, the Pennsylvania Railroad Company is not estopped from now setting up this objection.
This renders it unnecessary to consider the question what the posture of affairs would have been had the Pennsylvania Railroad Company been estopped, in view of the fact that the United Eew Jersey Railroad and Canal Company, Which was not a party to the certiorari proceedings, is a respondent in this cause. Unless, by its lease to the Pennsylvania Railroad Company, it stripped itself of all substantial interest in the road, and passed
I am therefore constrained to the conclusion that, by reason of the want of provable filed consents of the abutting owners along the road of which the petitioner’s road is an extension, the petitioner 'has no standing to ask for the order now sought'.