Packard v. Bergen Neck Railway Co.

48 N.J. Eq. 281 | N.J. | 1891

Lead Opinion

Magie, J.,

expressed his views as follows:

I vote to affirm the decree below upon a general concurrence with the conclusions reached by the learned vice-chancellor who-heard the cause.

But I am not willing to be considered as concurring in all the-views expressed in the opinion below.

In the first place, while I assent to the construction of section 2 of the act of March 9th, 1877 (Rev. Sup. p. 128), which makes-its provisions apply to cases of condemnation of lands generally, and not alone to condemnations which are the subject of the provisions in section 1 of that act, I desire not to pronounce on the-propriety of the practice adopted in the proceeding which has-given rise to this litigation.

My present view is, that an order directing the payment into the court of chancery of an award, under section 2, ought not to be made ex parte, but only after an opportunity has been given,, by rule to show cause or otherwise, to the person named in the award, to be heard on the question whether the facts justify such< an order.

But that question does not call for decision. The act confers-jurisdiction to make such an order. It cannot be attacked collaterally because prematurely or irregularly made. Relief in-that respect could be obtained only by an appeal from the order..

In the second place, I am not prepared to pronounce upon the-validity of the resolutions of the council of the city of Bayonne,, in the absence of that municipality as a party to this cause.

In my judgment, the case does not call for such an adjudication. By the terms of the resolution Packard did not become a contractor obligated to the city to grade Twenty-eighth street and build"the draw-bridge mentioned therein. At the most he became a licensee, permitted to do that work if he desired- He-was equally at liberty to refrain from doing it.

Under those circumstances, the question presented did not necessarily involve the rights of the city. Packard’s property had been condemned for respondent’s use, and a jury had awarded a large sum for compensation, upon a scheme of condemnation which carried a solid filling across his proposed canal. It was proper to restrain him from volunteering to do work the effect of which would have been to deprive respondent of rights which it had acquired against him, and for which he had been paid by the payment of the award into court.

But I must express a decided dissent, in which I believe I am joined by my associates, from the expressions of the opinion below respecting the city of Bayonne and its officers. They were not before the court, and the opinion in that respect was uncalled for. There is nothing in the case to justify any animadversion upon their conduct. A fair inference may be drawn from the circumstances that the city authorities deemed the projected enterprise of Packard of great importance to the municipality, and upon that inference the license to Packard was a natural result. The license may not have been properly conferred, but there is nothing to justify a charge that it was not given, or attempted to be given, in good faith.

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Dissenting Opinion

Dixon, J.

(dissenting).

The complainant does not dispute that the city of Bayonne has the right to grade East Twenty-eighth street to the established grade, and that such right is unimpaired by the condemnation proceedings which the complainant had prosecuted against •the defendant. . But the complainant contends that the defendant acquired no right so to grade the street under the city’s resolution of May 6th, 1890 — -first, because the city council passed the ■resolution with improper motives; and, secondly, because the •city’s power to grade streets can be exercised by ordinance only. For these reasons the complainant prayed and the learned vice'chancelloit advised a preliminary injunction restraining the defendant from grading the street.

I think the city itself has such an interest in the carrying out •of this resolution that the work should not be thus stayed, in limine, without giving the city an opportunity to be heard on the-questions involved. It should have been made a party to the-suit. Because it was not, so much of the decree as directs an injunction preventing Packard from grading the street should here versed.

For affirmance — The Ci-iief-j ustice, Depue, Magie, Reed,. Scudder, Vans yokel — 6.

For reversal — Dixon, Knapp, Brown, Clement, Smith, Whitaker — 6.