90 N.J. Eq. 560 | N.J. | 1919
The chancellor enjoined the township committee and the board of freeholders from removing a turnout known as Green’s switch from its location in a county road, and the township of Ewing and the freeholders of Mercer appeal. The rights of the street railway company rest on an ordinance of the township, of November 1st, 1902, consenting to the construction of the railway and fixing the location of the tracks. A map showing the location of tracks and switches accompanied the ordinance. The street railway company executed an agreement in accordance with the statute, by which it accepted the ordinance and all its provisions and covenanted with the township that the railway company and its successors should be bound to observe, keep,-and perform all the conditions, limitations, impositions, matters and things by the ordinance directed to be observed, kept and performed as a consideration to the enjoyment of the rights, privileges, franchises and licenses granted by the ordinance. The agreement added that it was the express intention to he bound by all the restrictions, limitations, and conditions of the ordinance. The railway was built in 1903; Green’s switch was not located at the point indicated on the map, but one thousand seven hundred feet away. No question arose until 1915, when the township and county authorities moved to take up the switch, and the present hill was filed. The bill sets forth the ordinance and agreement, but obviously these averments would not entitle the complainant to relief, since they failed to aver and could not prove that the switch was constructed at the point fixed. The bill charges that the railway was constructed by virtue of the ordinance “or other valid authority.” What that other valid authority was appears only in the answering affidavits. In those the claim is made that the township committee and the board of freeholders assented to the actual location of the switch. This assent seems to have been merely by Individual committeemen and freeholders, perhaps while the building of the road' was in progress, perhaps at a tour of in
The complainant relies really upon the failure of the public authorities to object or to act for twelve years. Whether he chooses to use the term “estoppel” or “laches” is of no importance. The elements of an estoppel are not present since there is no proof that the railway company was induced to place the switch where it did by anything said or done, even by individual members of the committee, - although that would not raise an estoppel against the public. The municipality in granting the consent originally could act only by ordinance “and not otherwise” as the statute is careful to say. Comp. Stat. p. 5040•. This clearly forbids action by way of estoppel, which, if permitted, would nullify the statutory prohibition. It is, moreover, conclusive against the company that it did in fact act under an ordinance which fixed the location of the switch at a different point from the actual location. The company did not waive its right to maintain the legal switch. It contracted in solemn form to comply with the ordinance. If it has a right to maintain the present switch, it has a right to maintain four switches
There remains only the suggestion that the public authorities are barred by laches. The law is settled- to- the contrary. Cross v. Morristown, 18 N. J. Eq. 305; Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken, 36 N. J. Law 540; Price v. Plainfield, 40 N. J. Law 608; Laing v. United New Jersey Railroad, &c., Co., 54 N. J. Law 576, 578; Jersey City v. Hall, 19 N. J. Law 559.
' The switch was constructed in the- public highway without ¡right and the municipalities were within their rights in abating the nuisance. It is of no importance that both parties were feting to the same end.
The decree must be reversed and the record remitted to the end that the bill may be dismissed. The defendants are entitled to costs in both courts.
For affirmance — Bergen, Black, White, Williams — 4.
For reversal — The Ohiee-Jtistice, Swayze, Trenchard, Parker, Minton, Kalisci-i, IIeppent-ieimer, Taylor, G-ard-