63 N.J.L. 252 | N.J. | 1899
The opinion of the court was delivered by
This writ of error is sued out by the city of Orange to review the judgment of the Supreme Court in the ease of State, Morris and Essex Railroad Co. and the Delaware, Lackawanna and Western Railroad Co., pros., v. Mayor and Common Council of the City of Orange, on eertiorari, setting aside an assessment of damages and for benefits in laying out and opening Hickory street from South Main street to Parrow street.
By an ordinance adopted January 4th, 1892, the city council laid out Hickory street within termini named, crossing the railroad of the prosecutors.
By section 30 of the charter of Orange the common council was required from time to time to appoint five commissioners of assessment, to be known by the name of the board of
In Paterson and Newark Railroad Co. v. Newark, 32 Vroom 80, which was a case in its facts and circumstances identical with this case, the Supreme Court held that “ the laying out of a highway across a railroad is a taking of the company’s property for public use, and entitles it to •compensation therefor; and compensation for such taking includes the making good to the company the money expended
This writ of error brings up for review the judgment of the Supreme Court, and involves a consideration of the reasons which controlled the court in its judgment, as well as the legal principles which should control in setting aside or sustaining the proceeding under review.
The company has title to the locus in guo by a deed from William Pierson, Jr., and wife, February 23d, 1836,'grant-ing the tract of land described to the Morris and Essex Bail-road Company, and to their successors and assigns forever, with the right, liberty and privilege of entering upon the said tract, and to take possession of, hold, have, use, occupy and excavate the same, and erect embankments and bridges and other works necessary to lay rails, and to do all things which should be necessary or suitable to the completion and repair of the company’s road or roads / to have and to hold unto the said company, and to its successors and assigns forever, for the purposes above mentioned and for all other purposes mentioned in said act of incorporation. By this conveyance the company took a fee-simple determinable — a qualified fee for the purposes mentioned in the habendum. Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., 33 Vroom 254.
It is conceded that compensation should be made to the railroad company for the opening of the street across its track. The city charter (Pamph. L. 1869, p. 213) provides in section 64 for compensation under the designation of damages, and in section 65 makes it the duty of the commissioners to assess damages with due regard to the value of the
The opening of the street did not deprive the railroad of the use of its track for railroad purposes. Under the condemnation of a* right to lay streets across a railroad track, or to lay the track of one railroad across another, nothing is acquired but a right of way; the place of crossing will remain in the common use of the parties for the exercise of their respective franchises. New Jersey Southern Railroad Co. v. Long Branch Commissioners, 10 Vroom 28; National Docks, &c., Co. v. United Cos., 24 Vroom 217. As between two railroad companies having the common use of a place of crossing, the right of the two companies in the user is equal; but with respect to user as between the public using the highway and the railroad company using its tracks for the passage of trains, the right of the railroad company is in law and in fact superior. It was accordingly held in Central Railroad Co. v. Bayonne, that when a highway is laid out across a railroad the owner of the railroad is not, as the owner of land ordinarily is, excluded from the beneficial use of his property, and hence the value of the land is not a legitimate element of compensation. 22 Vroom 428. The principle that a company over whose track a public road is constructed is not excluded from the beneficial use of its railroad, and is not entitled to compensation as for lands taken, is well settled. This case, therefore, resolves itself purely into an examination of the damages to be compensated for and the rule for their admeasurement.
The company had constructed a switch for the storing of cars and convenience in conducting its business, which extended over this street to the next street over the railroad. This switch was lower than the company’s main tracks, and
The main controversy is with respect to the company’s claim for the cost of erecting and maintaining gates and the expense of flagmen to manage the gates. The company relies upon Paterson and Newark Railroad Co. v. Newark, supra, to sustain this claim. In that case it was contended by the city of Newark that the cost of constructing, maintaining and operating safety gates in virtue of an ordinance of the city was a police regulation pure and simple, and that no person could recover damages on account of being compelled to comply with the police regulations of the municipality. But the Supreme Court discredited that contention as based upon a misapprehension of fact, and held that the railroad company was entitled to compensation in that respect for the reason that the necessity for gates at a highway crossing over a railroad did not at all depend upon the existence or the non-existence of an ordinance requiring their erection, for unless the proper protection of the public makes them necessary such an ordinance would be unreasonable and void; and, on the other hand, if the safety of the public and the safe operation of the railroad required gates at such crossing it would be necessary for the company for its own protection to erect them, even if no ordinance to that effect existed, and that the question whether or not the company was entitled to compensation for such outlay depended on whether it was rendered necessary by the laying out of the street across the company’s railroad.
The charter of the city of Orange gives the municipality power to pass ordinances to regulate the speed of locomotive engines upon any railroad in the town, and to compel any railroad to station and maintain flagmen wherever such rail
The erroneous feature in the decision just referred to consists in discarding the consideration that the duty of erecting and maintaining gates at the crossing of streets over a railroad, whether flor the protection of the public using the street or of the railroad company in operating its road, is referred to the police powers of the government. This principle is stated by Mr. Justice Scudder in Delaware, Lackawanna and Western Railroad Co. v. East Orange. In that case the question involved was the right of East Orange to pass an ordinance requiring the prosecutors to station and maintain flagmen at the crossings of streets which had been opened after the railroad was -built. In delivering the opinion of the court sustaining the ordinance Mr. Justice Scudder said: “The public have the right to lay roads over the railway tracks and use them in crossing as part of such highways. In such use all persons who pass over them, properly exercising the right to
A regulation adopted for public safety under the police power of the state is not a taking or damaging of private property without just compensation, although conformity to such regulations involve expense. Chicago and Northwestern Railroad Co. v. Chicago, 140 Ill. 309. Thus it was held in Mugler v. Kansas that legislation, in the exercise of the police powers of the state, to prohibit the manufacture and sale of •spirituous liquors, might be enforced against persons who at
The decisions on this subject are conflicting in some particulars. In Old Colony and Fall River Railroad Co. v. Plymouth, 14 Gray 155, decided in 1859, the highway was laid across the track of a railroad after the railroad had been built and was in operation. The company claimed damages for the taking of their land; for increased liability to damages from accidents from collisions and otherwise, by reason of laying out the highway at grade over their track; the expense of making and maintaining signboards at the crossing; for making and maintaining cattle-guards; for the expense of planking and keeping the planks in repair between the rails; for increase of expense in ringing the bell as required by law, and for liability of being compelled by county commissioners to build a bridge for the highway over the railroad track. The court allowed damages for taking the land, subject, however, to its use for a railroad, the expense'of erecting and maintaining signs required by law at the crossing, making and maintaining cattle-guards and for the expense of flooring the crossing and keeping the planks in repair, and disallowed the other elements of damages claimed.' This case was made the basis of decision In re Morris and Essex Railroad Co., 9 N. J. L. J. 75. The counsel of the company justly says that the judge who decided the latter case was not satisfied with the logic of the Massachusetts case, but followed it as a precedent. It will be observed that in the Massachusetts case it was held that in assessing the damages for the taking of the
It will also be observed that in the .Old Colony case no allusion was made to the distinction between taking property under the power of eminent domain and damages resulting from the exercise of police powers, which are damnum absque injuria. The case was explainéd in Boston and Albany Railroad Co. v. Cambridge, in the same court. Allowance was there made for the expense of making and maintaining in repair the planking, paving, cattle-guards, fences, signboards, posts, gates and gate-houses, but the cost of operating the gates was excluded from the verdict as chargeable to the ordinary operating expenses of the railroad. But the decision in the latter case was rested upon a statute which enacted that when a way is laid across an existing railroad “ all expenses of and incident to constructing and maintaining the way at such crossing shall be borne by the county, city or town whose duty it is to build and maintain such way.” Stat. 1857, ch. 287. The learned judge who delivered the opinion of the court justified the damages permitted in that case on the ground that “ it is only by allowing the expense of .erecting and maintaining the appliances and structures necessary and required at the new crossing to be taken into account in the assessment of damages done to the railroad company by the
The New York courts have decided that a statute which authorized the construction of highways across railroad tracks without compensation' did not violate the constitutional provisions against taking private property for public use, or impair the obligation of contracts. Albany Northern Railroad Co. v. Brownell, 24 N. Y. 345; Boston and Albany Railroad Co. v. Village of Greenbush, 52 Id. 510; Delaware and Hudson Canal Co. v. Whitehall, 90 Id. 21. In the Connecticut courts, an act which authorized railroad commissioners, who were public officers, to order a railroad to remove grade crossings, and when the company failed to do so to determine and apportion the expense of such changes to be paid by the company, was held not to be unconstitutional. In the latest decision on this subject the commissioners ordered a certain crossing to be removed, so that the highway, instead of crossing the tracks at grade, would be carried under the tracks, and for that purpose the location of the crossing should be changed by the removal of tracks. The commissioners further ordered that all said changes, alterations and removals should be made and done by the railroad company, and the expense thereof, including the damage to any person whose lands were taken, and the special damages which the owner of any land adjoining the public highway should sustain by reason of any change in the grade of such highway, should be paid by the railroad company. From that order the company appealed on the ground that the statute was unconstitutional. That contention wag overruled. 62 Conn. 252; 26 Atl. Rep. 122. This decision was affirmed in the Supreme Court of the United States. New York and New England Railroad v. Bristol, 151 U. S. 556, 566, 567.
In the New Yoi'k and Connecticut courts the decisions were placed on the ground that the charters of the respective companies were subject to alteration o.r repeal, but in examining the opinion of the Connecticut court and of the Supreme Court of the United States in the latter case, stress is laid on
The decisions of the Illinois courts on this subject are entitled to great consideration, for the reason that the principles adjudged in those decisions have received the support of the Supreme Court of the United States. The constitution of Illinois contains the provision that private property shall not be taken or damaged for public use without just compensation. By a statute of the state approved April 10th, 1872, relating to the incorporation of cities and villages, it was provided that the city council should have power, by condemnation or otherwise, to extend any street, alley or highway over or across, or to construct any sewer under or through any railroad track, right of way or land of any railroad company; but where no compensation is made to such railroad company, the city shall restore such railroad track, right of way or land to its fo mer state, or in a sufficient manner not to have impaired its usefulness. The ninth article provided that when the municipal authorities passed an ordinance authorizing any local improvement which would require that private property be taken or damaged for public use, the city or village should file in its name a petition to some court of record of the county praying “that the just compensation to be made for private property to be taken or damaged ” for the improvement or purpose specified in the ordinance be ascertained by a jury. In Chicago and Northwestern Railroad Co. v. Chicago, a city ordinance laid out the extension of a street across the tracks of the railroad company. On an application to the court for the assessment of damages the company claimed allowance for the following items of expense : Grading, planking, gate, power-house, wages of gate-tender, repairs to the planking, repairs to the' gate. The Circuit Court rejected the company’s claim for substantial damages and gave judgment for a nominal sum. On appeal to the Supreme Court the judg
In Chicago, Milwaukee and St. Paul Railway Co. v. Milwaukee, it was held that upon the crossing of a street over a railroad the railroad company was entitled to compensation for the use of its track for the crossing of a highway, and for structural changes, including planking the track and maintaining the same, but not for the expense of erecting and operating gates; that the latter were not structural changes in the track and not a necessary part of the crossing, and that the company was not entitled to compensation for the expenses incident to a compliance with the police powers. In that case a special verdict was found, assessing the company’s right of way taken by the city subject to its use for railway purposes at one dollar. Allowance was also made for the expense of planking the crossing and maintaining the planking, for the maintenance of a warning-post and crossing-sign, the expense of constructing and maintaining cattle-guards and of erecting, maintaining and operating gates at the crossing. On appeal the court disallowed all these items, except for the right of way and structural changes, such as planking the track and maintaining the same. This decision was placed on the ground that the excluded items of expense arose from the exercise of police regulations, and, therefore, were not violations of the constitution as impairing the obligation of contracts or as the deprivation of property without due process of law. The legislative authority under the police powers, the court held, extended to all matters necessary to a safe crossing of a railway track by a highway, without regard to whether exercised before or after the construction of the railroad or before or after the construction of the highway, or whether the highway existed at the time of the construction of the railroad or was thereafter constructed across it. 72 N. W. Rep. 1118. In St. Paul, Minneapolis and Manitoba Railroad Co. v. District Court of Hennepin County it was held that the company was entitled to compensation for plank
As already observed, the decisions on this subject are not harmonious, but we think upon principle and by the clear weight of authority these propositions may be regarded as established: First. That a railroad company on the laying of a highway over its tracks is entitled to compensation for the use of the locus in quo for a highway crossing; that such use does not deprive the company of the use of the premises for the passage of its trains, and that when the crossing is at grade, the injury to the company in that use of its property is so slight as to justify nominal damages. Second. That for an injury occasioned by necessary structural changes, such as the removal of buildings or changes in the tracks, compensation should be made which would be adequate under the circumstances. Third. That for the expenses incident to the erection and maintenance of gates, signboards, cattle-guards and the like, including the salary of a flagman, the company is not entitled to an allowance. Such expenditures, being required either for the protection of the company in running its trains or of the public using the street at such crossings, are expenses incident to a compliance with police regulations, and, therefore, do not entitle the company to an allowance for them.
In some of the cases the cost of planking between the rails and the expenses of maintaining it have been allowed as for structural changes in the company’s property to make it conform to the new use. In the greater number of cases compensation of this character is disallowed, on the ground that such an adaptation of the company’s property to the passage of the public highway is not a structural change, but a provision for the safe passage of the public using the highway
The report which was brought under review in the Supreme Court assessed the company for benefits. We think in principle this was erroneous. The sum assessed is small, but the principle on which assessments for benefits for the opening of streets are made does not justify any assessment against the company for benefits arising from the opening of this street. Hor was any consideration given to an allowance for the expenses of changes in the switch which seem to have been made necessary by the opening of the street. Such an allowance would be proper as expenses incident to structural changes to conform the company’s tracks to the passage of the street over its railroad. The award of damages brought up was erroneous in the respects above indicated, and the decision of the Supreme Court setting it aside was therefore 'correct; but the directions given by the Supreme Court in appointing new commissioners, with respect to the mode in which the assessment by them should be made, were erroneous and are disapproved.
The judgment of the Supreme Court setting aside the awai’d of the commissioners is a final judgment, from which a writ of error will lie, although the Supreme Court in setting aside the award of the commissionei’s appointed new commissioners to the end that another award might be made. The practice so firmly established in this state, of allowing a writ of error to review a judgment of the inferior court setting aside a final judgment and directing a new trial, is in
The judgment of the Supreme Court should be affirmed and the record remitted, to be proceeded with according to law.
The judgment of the Supreme Court under review vacated an insufficient award or assessment of damages to the railroad company for the laying out of a street across its track. The judgment was warranted by the evidence and I shall vote to affirm it.
But the instructions contained in the order of the Supreme
This view would lead me to abstain from any expression of opinion upon that subject, but for the fact that a majority of the court have treated the questions above indicated as now before us for judgment. This.compels me to say that I cannot concur in the opinion supported by the majority. The instructions required the commissioners to make the new assessment on the principles laid down in Paterson and Newark Railroad Co. v. Newark, 32 Vroom 80. If the court had power to direct the commissioners in the performance of their duty, this direction was, in my judgment, correct. I entirely agree with the reasoning and conclusion of Mr.' Justice Gummere in his opinion in that case.
I base my substantial assent to the conclusions of the court in this case on the provisions of the charter of the Morris and Essex Railroad Company (Pamph. L. 1835, p. 25), of which the ninth section enacts “that it shall be the. duty of the said company to construct and keep in repair good and sufficient bridges or passages over or under the said railroad or roads, where any public or other road shall cross the samé, so that the passage of carriages, horses and cattle on the said road shall not be impeded thereby, and also, where the said road shall intersect any farm or lands of any individual, to provide and keep in repair suitable wagon-ways over or under said road, so that he may pass the same.”
I understand this provision to include highways laid across the railroad at any time.
In Morris Canal Co. v. State, 4 Zab. 62, the Supreme Court interpreted a somewhat similar provision in the canal company’s charter as embracing only highways existing when the canal was constructed. But this interpretation was reluctantly
But in the present charter there is no such union between ithe expression of the public duty and that of the private ¡duty. On the contrary, there is a marked diversity. Thus ithe private duty arises “ where the said railroad shall inter seat any farm,” fairly pointing to the original construction of the railroad. But the public duty arises “where any public or other road shall cross the” railroad; words which, by the same rule of interpretation, point to the construction of the highway. I do not mean to say that the duty is confined to highways laid out after the railroad was built — the reason of the thing forbids so narrow a view ; I only wish to suggest that the words themselves point more naturally to subsequent than to pre-existing highways. Under the guidance of a public policy, which the legislature cannot be supposed to have ignored, the duty enjoined should be deemed to extend to highways of both classes.
I therefore think that, by accepting its charter, the company has become subject to the opening of highways across its railroad and to the duty of making and keeping in repair safe crossings therefor without receiving from the public any compensation other than the grants contained in the charter, and that if this were merely a crossing of the railroad, with the ordinary incidents of such a crossing, the report of the commissioners, which awarded to the company only nominal damages, should have been confirmed.
Mr. Justice Ludlow concurs in this opinion.
I vote to affirm so much of the judgment of the Supreme Court as was a finality in that court. The instructions given by that court for the guidance of the commissioners it had appointed cannot, in my opinion, assume a •definite, still less a final, form until certain questions of fact have been passed upon not only by the commission, but also by the Supreme Court. Upon this inchoate state of affairs I ■express no opinion, and hence do not concur in any of the •opinions that deal with those instructions.
For affirmance and concurrence in the opinion of Mr. Justice Depue — The Chancellor, Collins, Depue, Lippincott, Adams, Bogert, Nixon, Vredenburgh. 8.
For affirmance on the grounds stated by the Chief Justice— 'The Chief Justice, Gummere, Hendrickson. 3.
For' affirmance on the grounds stated by Mr. Justice Dixon —Dixon, Ludlow. 2.
For affirmance on the grounds stated by Mr. Justice Garrison —Garrison. 1.
For reversal — None.