34 N.J.L. 201 | N.J. | 1870
The opinion of the court was delivered by
By the charter of the city of Paterson, passed in the year 1861, power is conferred upon
When this matter ivas first opened on the argument, I was at a loss to perceive upon what ground the grant of this franchise to the city was to be sustained, and reflection has but served to deepen that impression into conviction. It is one of the most important of the privileges of the citizens of this state that their property cannot be taken, even when required by the public convenience, without just compensation. This is a constitutional provision, and, like all such, is to be sedulously guarded and carefully preserved. It is the admitted duty of the courts of the state to see that this invaluable prerogative is secure against all invasion. The provision is a restriction on the legislative power, and a statute in contravention of it is void. These principles have been heretofore so often stated and enforced that it is necessary to advert to them only to mark their application to the facts now before the court.
The defendant was the owner of a lot of land bounded on the street in question. His title extended ad medium fdum
Under these circumstances I think it is undeniable that the appropriation of this land to the purposes of a market was an additional burthen upon it. Clearly, it was not using it as a street. So far from that what the act authorized to be done, was incongruous with such use — for the market was an obstruction to it, considered merely as a highway. There can be no doubt that an indictment will lie for holding a fair or market in a highway unless legalized by custom. Rex v. Smith, 4 Esp. R. 109; Rex v. Canfield, 6 Esp. R. 136; Elwood v. Bullock, 13 Law J. (N. S.) 330. And in like manner, a sale in a public street by a constable under an execution is a nuisance. Commonwealth v. Milliman, 13 S. & R. (Penn.) R. 403. In a recent case in New York, the collecting of carts in a street in the ordinary course of a legitimate business was declared to be a misdemeanor, on the ground that it unduly impeded the use of the public easement. People v. Cunningham, 1 Denio 524.
When, therefore, the legislature declared that these streets in the city of Paterson might be used for market purposes, the power which was conferred, in substance, was an authority to place obstructions in these public highways. The consequence is, that there is no force in the argument, which was the principal one pressed upon our attention, that the use of these streets for the purpose now claimed is as legitimate as the use of a public highway by a horse railroad, which latter usé has been -repeatedly sanctioned by the courts of the state. The two cases, so far as relates to principle, stand precisely opposite. I have said that a market is an obstruction to a street; that it is not a use of it as a street, but, if unauthorized, is a nuisance. To the contrary of this, a horse railroad is a new mode of using a street as such, and ’it is precisely
I regard, then, a right to hold a market in a street as an easement additional to, and, in a measure, inconsistent with its ordinary use as a highway. The qixestion, therefore, is presented' — can such easement be conferred by the legislature on the public without compensation to the land-owner f I have already said that from the first it has appeared to me this question must be answered in the negative. I think the true rule is, that land taken by the public for a particular use cannot bo applied, under such a sequestration, to any other use, to the detriment of the land-owner. This is the only rule which will adequately protect the constitutional right of the citizen. To permit land taken for one purpose, and for which the land-owner has been compensated, to be applied fo another and additional purpose, for which lie has received no compensation, would be a mere evasion of the spirit of the fundamental law of the state. Land taken and applied for
The case of Carter v. Wright, 3 Dutcher 76, was cited on the argument and should not be passed, in this connection, without explanation. A turnpike company Avas authorized to have a public road vacated, and to subject the land so relieved of its old burthen to the new servitude. A vacation AA-as effected, and the company, in connection Avith their gates, erected a toll-house on the bed of the road. This court held that the act of the legislature authorizing this action of the turnpike company was constitutional' — and further, that the erection of the toll-house on the bed of the road was likewise legal. This judicial validation of the change of the public highAvay into a turnpike cannot operate in favor of the prosecution in the present case, inasmuch as it is expressly placed on the principle that such a change imposed no new burthen on the land-owner, and that nothing was thereby taken from him. The vieAV entertained Avas, that all that the legislature granted to the turnpike company Avas the use of the ancient highway for the purposes of their road — and that, consequently, the property of the land-owner was not infringed. Thus far the decision is in all respects in harmony with the rule adopted in the other cases above cited; but this decision Avent beyond this point, and established the right of the company'to put up their toll-house on the bed of their road. It seems to me that this was an invasion of the property of the land-owner, because to this extent it put an additional servitude upon his property. ’While the land was a public highAvay such a building could not have been erected; conse
An examination of the decisions in the other states will show that, in the main, judicial opinion favors the same result. The State v. The Mayor and Aldermen of Mobile, 5 Porter 279; The Trustees of the Presbyterian Society v. The Auburn & Rochester R. R. Co., 3 Hill 569; Williams v. The New York Central R. R. Co., 16 N. Y. R. 111; and cases collected in Angell on Highways, § 243, et seq.
I think the wagon of the prosecutor, at the time in question was a nuisance, and that the defendants had the l’ight to remove it peaceably — and that the court below should be so advised.
Cited in Morris and Essex R. R. Co. v. Hudson Tunnel Co., 10 C. E. Gr. 389.