72 N.J.L. 398 | N.J. | 1905
The opinion of the court was delivered by
The declaration sets forth that at the time of the grievances complained of the plaintiff was seized and possessed of a farm in Middlesex county, with a dwelling-house
The defendants plead that the Freehold and Jamesburg Agricultural Railroad Company, a corporation created and existing by virtue of a public act of the legislature approved March 12th, 1851, did in the year 1864, under and in pursuance of said act, survey and lay out a railroad over and across a certain farm then owned in fee-simple by one Keough, which included the lands now of the plaintiff, and that for the purpose of the construction of the railroad over and across said farm, Keough by deed conveyed to said railroad company and its successors and assigns forever a certain strip or portion of his farm one hundred feet wide, and extending across the farm, and that said Keough did, among other things, in and by said deed, and for a money consideration, release the said Freehold and Jamesburg Railroad Company “from all inconvenience and damage incident to the construction and use of said railroad;” that this company thereupon constructed its railroad, in accordance with the provisions of its charter and supplement, upon and over the strip of land so conveyed by Keough, and thereafter used and operated the railroad, and that afterwards, and in the year 1874, pursuant to legislative authority, it conveyed said railroad, with its appendages, to the United New Jersey Railroad and Canal Company; that the last-mentioned company, by its agent, the Pennsylvania
To this plea a general demurrer is interposed on the grounds that the Keough release is not binding upon the
The learned counsel for the defendant attempts to support the plea, without regard to the averment of the release, on the ground of public duty. The charter of the Freehold and Jamesburg Railroad Company (Pamph. L. 1851, p. 201), being by its own terms a public act, is properly to be noticed without being specially pleaded. Its ninth section contains the familiar provision making it the duty of the company “to construct and keep in repair good and sufficient bridges or passages over or under the said railroad where any public or other road now or hereafter laid out shall cross the same, so that the passage of carriages, horses and cattle on the said road shall not be impeded thereby.” We are reminded that in Centrad Railroad Co. ads. State, 3 Vroom 220, it was held that a similar provision imposed upon the company the duty to keep the public highways at all times and under all circumstances, at the point where they cross the railroad, in a condition lit for safe and convenient use, and that to accomplish this end the power to alter the grade as public emergencies require must reside in the corporation. The doctrine of this case is well established; but the changes of grade thereby sanctioned are those which are required for the safety and convenience of the public who are entitled to use the highway. The decision does not go to the extent of sanctioning a change of the grade of the highway for the mere convenience of the railroad and. its employes. But what is more important, the Central Railroad case was an indictment for a public nuisance, the obstruction of a public highway. To this it was a sufficient answer to say that the obstruction was caused by the lawful performance of a public duty that required the grade of the highway' to be so changed that instead of crossing the surface of the railroad tracks it should be passed through a tunnel beneath the tracks. In the present instance we have to deal with a private nuisance. And although the legislature
Next it is insisted that the release embodied in the Keough deed discharges the damages in question. The charter already referred to, besides authorizing the construction and operation of the railroad, provides in the usual terms that if the company cannot agree with the owner of the required lands for the use or purchase thereof, commissioners are to be appointed “to appraise the said lands and to assess the damages,” and it is made their duty “to make a just and equitable assessment or appraisement of the value of the same (lands) and assessment of damages aforesaid.” An appeal is provided for, in which case it is made the duty of a jury “to assess the value of the said land and damages sustained.” Manifestly the award was to include not merely the value of the strip of land occupied by the railroad, but all incidental damages to the adjacent lands which might result in the future from the construction and operation of the railroad according to the provisions of the charter, and with proper care and skill. Van Schoick v. Delaware and Raritan Canal Co., Spenc. 249; Trenton Water Power Co. v. Chambers, 2 Beas. 199.
As we construe the deed of conveyance and release set forth in the plea, it was designed to vest in the company precisely the same title to the lands described therein, and the same incidental rights, as if the strip of land had been condemned for railroad purposes. Whatever inconvenience and damage incident to the construction and use of the railroad would properly have been taken into consideration by commissioners in making up their appraisement are fairly included in the
Were there doubt of this, it remains to be said that the release plainly relates to the construction and use of the railroad as it was then about to be constructed, and if it was intended to incidentally authorize any alteration in the grade of the highway apart from the one-hundred-foot strip, it contemplated but a single construction. The railroad having been accordingly constructed in the year 1864, and nearly forty years having elapsed before the change of the highway grade now complained of, the applicancy of the release in that behalf seems to have been exhausted. No doubt the railroad company is still at liberty to change the grade of its railroad in order to pass its trains safely beneath the highway bridge; but we are unable to see that it has the right to impose additional burdens upon lands of the plaintiff, outside of the strip conveyed by Keough, in the effort to accomplish this purpose.
The plaintiff is entitled to judgment on the demurrer.