84 N.J.L. 46 | N.J. | 1913
The opinion of the court was delivered by
The town of Montclair, upon the petition of the railroad company, vacated that portion of Pine street where it crossed land of the railroad, in pursuance of a contract to abolish a grade crossing, and to substitute for that portion of the street a foot-bridge above grade. The railroad
The right of landowners to compensation for damages caused by the vacation of a public street is wholly statutory. Newark v. Hatt, 50 Vroom 548, 550. The right in this case rests upon section 61 of the Town act of 1895, as amended in 1910. Comp. Stat., p. 5539. Prior to the amendment the power given did not extend to the vacation of streets. The insertion of that power seems to have been the sole object of the amendment. The town had, however, had the power so far as necessary for the abolition of grade crossings since 1901, at latest. Comp. Stat., p. 4266, pl 114. It may therefore well be doubted whether the mere vacation of a portion of a street occupied by a railroad for the purpose of getting rid of a grade crossing is to be regulated by section 61 of the Town act. That section gives a veto power upon the proposed improvement to the owners of property subject to more than two-thirds of the assessment, and it would be most extraordinary if the absolute right to contract for the abolition of grade crossings given in 1901 could be qualified by a subsequent amendment of an act passed six years before. Although the amending act of 1910 does not indicate any intent to provide generally for the assessment of damages caused by vacation of a street except in cases where the course pointed out by the act is followed, we assume in favor of the contention of the town that damages may be assessed where the act is not followed. The question then is, do the clauses relating to damages reach the case of a vacation. An examination of section 61 makes it clear that it does not provide for damages to owners whose land is not taken. The commissioners are required to make a map showing all the lands, real estate and improvements to be taken, to ascertain the names of the owners of said real estate to be taken; to ascertain the value
The language of the Town act is very different from that used in the Newark charter, and that involved in the English cases cited by counsel. Eor instance, under the English statute all who were “injuriously affected” were entitled to compensation. Metropolitan Board of Works v. McCarthy, L. R., 7 H. L. 243. So also in the Scotch appeal. Caledonian Railway Co. v. Walker, 7 App. Cas. 259. Cases from states which take a different view of the effect of the constitutional limitation from that taken by our courts are, of course, not in point.
The awards of damages and the resolution, so far as it confirms the amounts, must he set aside, with costs.