23 N.J.L. 214 | N.J. | 1851
At the last term of this court, a rule to show cause why a mandamus should not be awarded was granted, and also a rule to take affidavits on either side, and now, upon argument of the rule, the following case is presented : the relators, resident citizens of the county of Essex, complain that the defendants, “ the board of chosen freeholders” of that county, have caused to be taken down and destroyed a certain stone bridge, which crossed the Elizabethtown creek, in and upon a public highway, which has existed and been used for more than half a century, and far refusing to rebuild the same, whereby the public are prevented from travelling upon said road and crossing said creek at the place they were before accustomed to do ; and that the travel on said road has thereby been diverted from its ancient track, to the prejudice of public interest and convenience. To this complaint the defendants answer, admitting that they caused the said bridge to be taken down, but alleging that they have caused to be erected in its stead another bridge, safer than the former, equally convenient for public use and travel, and better adapted to vent freely the waters of said creek.
The testimony taken under the rule, as well' in support of, as against this motion, most clearly establishes these facts—
These are the material facts presented upon the present application. The reasons assigned by the defendants in justification of their proceedings, and in answer to the motion, are—
1. That the old bridge was in a dilapidated condition, and had become unsafe and dangerous.
2. That a bridge on the new street would be, and now is of equal, if not greater public convenience, and better fitted for the passage of the water of the creek in times of freshets — and,
3. That the opening of the new street required the erection of a new bridge, and that the juxta-position of two bridges on these respective sites would, in all probability, be a serious impediment to the stream in time of high water.
By the fourth section of the act incorporating the boards of chosen freeholders of the several counties, it is made their duty, among other things, at their annual or other meeting held for that purpose, to vote, grant, and raise such sum of money for the building or repairing of bridges as they may deem adequate for such purpose. And, by the first section of the act respecting bridges (Rev. Stat. 535), it is provided, “ that when it shall be necessary to erect or rebuild any bridge, the expense of which shall exceed $500, the overseer of the highway shall give notice to the director of the board of chosen freeholders, who shall thereupon convene the board for the purpose of considering and deciding upon the utility or necessity of erecting or rebuilding such bridge.
If the expense of erecting or rebuilding a bridge is less than $500, and more than $50, then the chosen freeholders of the three adjacent townships are authorized, if they think proper, to order such bridge to be built, rebuilt, or repaired.
Here is a discretionary power, most clearly conferred upon the board of chosen freeholders, to consider and determine, or decide, upon the utility and necessity of erecting or rebuilding bridges, and to raise such an amount of money as they may deem adequate for that purpose, The law does not define under what circumstances or in what situations they may order the building or rebuilding of a bridge, but leaves it to their judgment and discretion. And this discretion cannot be transferred upon the mere complaint of individuals, who may conceive themselves or their property injured or impaired for the want of a bridge, from the local tribunal where the law has
Before we order a mandamus, therefore, we ought to be clearly satisfied that the defendants have abused their discretionary power in refusing to rebuild the bridge in question. I have carefully examined the depositions taken, and read in this case, and I cannot find in them any satisfactory evidence of such abuse. I assume it, as an undeniable principle, that where a bridge in a public highway has become dilapidated and unsafe, the board of freeholders may consider and decide whether necessity or public utility requires its rebuilding; and if so, that they are not bound to rebuild on the same site; but for good considerations, such as safety, convenience, or economy, may change the location, provided such change does not obstruct the public travel. The evidence here shows that the travel, which formerly passed over the old bridge, has been slightly diverted from the ancient track by means of the construction of that bridge, but has not been obstructed, for the new bridge affords equal facility in crossing the creek, and connects with the main road a short distance from the margin of the creek. It is true that some of the witnesses give it as their opinion that the alteration in the location of the bridge and road have, in some respects, incommoded a few individuals, but other witnesses have expressed contrary opinions, which are equally entitled to consideration. I cannot find, from the whole of the evidence, any satisfactory proof that the defendants have abused their discretion or violated their duty
Ogden, J., concurred.
Cited in Livermore v. Freeholders of Camden, 5 Dutch. 216.