Am. Malleables Co. v. Town of Bloomfield

• Decision Date: 18 November 1912
• Citation: 85 A. 167,83 N.J.L. 728
• Parties: AMERICAN MALLEABLES CO. v. TOWN OF BLOOMFIELD.
• Court: New Jersey Supreme Court

85 A. 167

83 N.J.L. 728

AMERICAN MALLEABLES CO.

v. TOWN OF BLOOMFIELD.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1912.

Garrison and Trenchard, JJ., dissenting.

Error to Supreme Court.

Action by the American Malleables Company against the Town of Bloomfield, in the county of Essex. Judgment for plaintiff (81 Atl. 500), and defendant brings error. Affirmed.

Charles F. Kocher and Edward M. Colie, both of Newark, for plaintiff in error. Pitney, Hardin & Skinner, of Newark, for defendant in error.

VOORHEES, J. This writ of error, running to the Supreme Court, brings to test the judgment of that court in setting aside a resolution of the town council of the town of Bloomfield, adopted March 6, 1911, and all proceedings thereunder. The resolution thus removed authorized and directed the mayor and clerk to enter into and execute on behalf of the municipality a supplementary agreement with the railroads, providing for the modification of a previous contract between them, dated July 12, 1910, for the elimination of grade crossings, made pursuant to certain acts of the Legislature, viz., General Railroad Act 1903 (C. S. p. 4234), "An act to authorize any town or city to enter into contracts with railroad companies," etc., approved March 20, 1901 (C. S. p. 4266), and "An act to provide funds," etc., approved March 30, 1904 (C. S. p. 4258). The original contract, dated July 12, 1910, had been sanctioned by an ordinance, and had for its purpose the abolition of grade crossings in the town.

The prosecutor, the defendant in error in this court, owned the land upon which its manufacturing plant is located, abutting on Mechanic street, which ran between the railroad and the prosecutor's property, and enjoyed the use of a switch or industrial siding from the main line of the railroad across Mechanic street at grade to the prosecutor's lands. The scheme to elevate embodied the vacation of Mechanic street, and the substitution in lieu of the former industrial switch of an elevated siding to leave the main line in its elevated position, and thence to be carried upon abutments to the prosecutor's lands. The vacation of Mechanic street was in fact accomplished before the date of the resolution under review, and the work under the original contract had progressed so far that the railroad tracks had been moved westerly within the limits of what was formerly Mechanic street. The work of replacing the industrial siding in its proposed elevated position had so far advanced that the abutments had been completed for it to pass from the main tracks. Possession of the land, lying within the bounds of Mechanic street (vacated), reverting to the prosecutor upon its vacation, had been permitted to the railroad company, and the industrial sidings formerly existing had been removed.

A petition had been presented to the council on January 3, 1911, for the opening of a new street, which, for convenience, may be called New Mechanic street, to run practically parallel to old Mechanic street, close to, but westerly of its site, and through lands of the prosecutor. Because of an incorrect description of the new street, the petition was withdrawn, and again, in corrected form, presented on January 16, 1911. The proceedings to open this new street were restrained by injunction out of the Court of Chancery on April 3, 1911, still in full force. Such was substantially the condition of affairs at the time of the passage of the resolution, and the execution on the date of its passage of the supplementary contract, which modified the original contract by eliminating the industrial sidings of the prosecutor. In this resolution and contract the railroad stipulated "to purchase and acquire by condemnation or agreement all the lands required by them for the said improvement, lying within the boundary lines of said Mechanic street as heretofore existing, being specifically all of the land lying within the lines of Mechanic street abutting the lands of the American Malleables Company and the Hedden Iron Construction Company and which would revert to the full possession, use and enjoyment of the said American Malleables Company and the said Hedden Iron Construction Company upon the vacation of Mechanic street as aforesaid. The town shall pay to the railroad companies all money, costs and expenses in excess of twenty-five hundred dollars which the railroad companies shall be required to pay out and expend in and for the acquiring of all the said lands acquired by it within the lines of said Mechanic street for the purpose aforesaid. * * * The town shall indemnify and save harmless the railroad companies and their respective successors and assigns from and against all claims, demands, suits, actions, damages, costs and expenses which the railroad companies or either of them shall incur or be subjected to by or on account of the American Malleables Company and the Hedden Iron Construction Company and all persons whomsoever by reason of the omission or elimination or failure to reconstruct and maintain an industrial siding or switch leading from the main tracks of the railroad companies to the lands and property of the American Malleables Company. No other or further amendment, alteration, or change in the said agreement between the parties hereto dated July 12, 1910, or in the work therein provided for as contemplated by this supplemental agreement except as herein specifically described and in all other respects the aforesaid agreement, dated July 12, 1910, shall be and remain in full force, virtue and effect."

It is argued in behalf of the town that by the decision of the Supreme Court there has been a denial of power, under the existing legislation, to enter into a contract, such as the one under consideration is. Undoubtedly sufficient power has been given by the Legislature to enable the town to contract for changes in streets, their vacation or opening, for the purposes of securing safety to the public by means of the elimination of grade crossings, and thereby promote the interest of the municipalities. Such contracts, when properly made, the municipalities have plenary power to carry into execution by proper municipal proceedings in the manner provided by their respective charters (Morris & Cummings Dredg. Co. v. Jersey City, 64 N. J. Law, 587, 46 Atl. 609), and, of course, incidentally the structures to be erected may be made sightly, perhaps to the point of being ornamental (Morris & Essex R. R. Co. v. Newark, 76 N. J. Law, 559, 70 Atl. 194). Nor can the power to alter and amend such a contract be doubted, provided such alterations and amendments concern those matters which are included in the objects of the legislation in question, namely, the security of life and property, effected by change of grade in railroad tracks. But the abandonment of the proposed industrial sidings, at the time of the change in the original contract, did not tend to this purpose. Their proposed reconstruction was to be upon private properties, and thus the agreement to do away with them did not tend to promote the public good, or to confer any advantage upon the public.

Moreover, the opening of New Mechanic street was no part of the proposed work, as set forth in the original ordinance. It may be true that the subject had been mooted during the progress of the development of the elevation scheme, and that certain independent steps may have been instituted, looking to the opening of such a street, and there may have been in contemplation that, if the new street should be opened, the sidings would constitute an obstruction to it....