38 N.J.L. 23 | N.J. | 1875
The opinion of the court was delivered by
This certified case asks of this court answers to two questions.
The first of these questions is, whether section eleven of the act constituting “ The Essex Public Road Board,” approved March 20th, 1869, applies to “ Bloomfield avenue,” which was laid out and constructed pursuant to a supplement to said act, approved February 16th, 1870. (Pamph. L., 1870,p. 181.)
The section of the act of 1869 here referred to, contains a provision giving damages to the owners of lands located along the line of the road constructed or widened, arising by reason of the alteration of the grade of such road. The grade of Bloomfield avenue, the road now in question, has been altered, and the damages thereby occasioned have been assessed by the jury on this appeal. The uncertainty with respect to the legality of this action has been caused by a doubt as to the applicability of this section eleven to this case. This doubt has this foundation : The act of 1869, of which section eleven is a part, does not authorize the road board to appropriate, or in any way meddle with a turnpike road ; in all its parts it has reference to the laying out of new roads, or the widening, straightening, and reconstructing of roads in the charge of townships. This, I think, is clear, especially from section six. Therefore, when section eleven provided that “ if, in widening, &c., any existing public road, or any part or parts thereof in said county, any alteration of the grade of said road shall be made, the damages,” &c., shall be assessed, &c., it is manifest that the roads so referred to were the public
Now, it seems to me that, if we incorporate into this supplementary act the eleventh section of the original act, it will appear that the section has, by force of association, a compass of signification which it did not originally possess. In the primitive act, where its clauses referred to “ public roads,” they did not embrace “ turnpike roads,” because such roads were not within the statutory project, while these same terms standing unrepealed, and now applying to a subject comprising turnpike roads, must be construed as extending to them. They are the same terms, but they are applied to a subject more comprehensive than their original subject. In their new connection, the terms, “ any existing public road,” mean any existing public road which the supplementary act authorizes to be taken in the construction of any of the six avenues; and turnpike roads are of that class. To confine these terms to the roads authorized to be laid on the application of the land-owners, by force of the seventeenth section of the supplement, would be both a forced and narrow construction. All the other retained provisions of the original act relate to this scheme of laying out these avenues, and no,
The second question concerning which the advisory opinion of this court is sought, is with reference to the effect of the ■award of damages for the taking of the land of the appellants. It appeared, on the trial, that the turnpike in question had been widened, and that commissioners had appraised, ■in accordance with the act, the damages done to the appellant in the sequestration of his property for the purpose of such extension. From this award no appeal was taken, and the