76 N.J.L. 251 | N.J. | 1908
The opinion of the court was delivered by
Zimmerman, the applicant in this matter, seeks a certiorari to review the action of commissioners appointed in a condemnation proceeding, instituted by the Hudson and Manhattan Railroad Company, to acquire a tract of land owned by one Hill, and in the possession of the applicant under a lease which does not expire until 1910. The ground of the application is that the commissioners erred in reporting the value of the property taken, and the damages sustained by the taking, in a lump sum, instead of making a separate award of the moneys to be paid to the applicant for his leasehold interest, and of the amount to be paid to Hill, the owner of the fee.
The revised Railroad act of 1903 (Pamph. L., p. 645), under which the company exercised the right of eminent domain, provides in the thirteenth section that the proceedings to condemn shall be had pursuant to “An act to regulate the ascertainment and payment of compensation for property condemned or taken for public use.” Pamph. L. 1900, p. 79. The fifth and sixth sections of that act provide that commissioners shall be appointed “to examine and appraise the said lands or property and to assess the damages;” and that they shall “proceed to view and examine the land, or other property, and make a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the petitioner for such land, or other property, and damage aforesaid.” This enactment is almost an exact transcript of the condemnation clause of the General Railroad law (Gen. Siai., p. 2641, § 12), which provides that commissioners shall be appointed “to examine and appraise the said lands -or materials, and to assess the damages;” and
It appears from the facts laid down before us that, after the rendition of their award by the commissioners, Zimmerman and Hill each appealed separately therefrom to the Circuit Court of the county of Hudson; that subsequently Hill dismissed his appeal; that Zimmerman duly applied to the Circuit Court (Judge Parker presiding) to frame the issue to be tried on his appeal; that his application was re-' fused; that subsequently he renewed his application before Judge Yail, who was then presiding in the place of Judge Parker, the latter having in the meantime resigned, and that this second application was also refused, upon the ground that the statutory time within which an issue could be framed had then expired. Appreciating the probability that his application for a writ of certiorari would be denied, Zimmerman