Am. Transp. & Nav. Co. v. N.Y., S. & W. R. Co.

Decision Date06 November 1896
Citation35 A. 1118,59 N.J.L. 156
PartiesAMERICAN TRANSP. & NAV. CO. v. NEW YORK, S. & W. R. CO.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to supreme court.

Application by the American Transportation & Navigation Company against the New York, Susquehanna & Western Railroad Company in eminent domain proceedings. From a denial of a mandamus requiring the appointment of commissioners (32 Atl. 74), plaintiff brings error. Affirmed.

Cortlandt Parker, for plaintiff in error.

J. Franklin Fort, for defendant in error.

BEASLEY, C. J. The American Transportation & Navigation Company made an application to a justice of the supreme court for the appointment of commissioners to appraise the value of certain lands which it sought to condemn for its corporate uses. This petition being refused, on the ground hereinafter mentioned, a motion was made in the supreme court for a mandamus ordering the Justice to make the appointment as requested. The writ was not granted, and hence the removal of the proceeding to this court.

The ground on which the application for the appointment of the commissioners in question was refused by the justice was this, viz. that the lands to be condemned were then owned by the New York, Susquehanna & Western Railroad Company, the defendant in error, and that lands thus held were not liable to be taken by the plaintiff for any purpose whatever. It was held that this inability was the result of a restrictive proviso in the charter of the navigation company, which is in these words: "Provided, that in no case shall this company be authorized to condemn or take possession of the land or property of any other corporation existing under the laws of this state, hut shall have the right of access across the same, doing no unnecessary damage to the lands of such corporation or interference with the business thereof, and such damage, if any, shall be ascertained and paid in the manner hereinbefore provided." At the inception of this condemnation procedure, the lands in controversy were owned and were in the possession of the defendant in error, and it was on this account that an order for a mandamus was refused. In this construction of the situation by the supreme court, this court concurs. To hold the opposite would be to permit this company to violate its own charter, the prohibition being expressed in unambiguous and plain terms that it shall not take the "land or property of any other corporation existing under the laws of this state"; and that is precisely what is being attempted to be done by this procedure. The legislature has said that lands circumstanced as these are shall not be condemned, and this court, as the subject is here presented to us, cannot annul or modify...

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2 cases
  • Mannino v. Moffett
    • United States
    • New Jersey Supreme Court
    • February 1, 1932
    ...of the Supreme Court to issue a writ of mandamus. Layton v. State, 28 N. J. Law, 575; American Transportation Co. v. N. Y., Susquehanna & Western Railroad Co., 59 N. J. Law, 156, 35 A. 1118; Paterson v. Shields, 59 N. J. Law, 36 A. 891; Kenny v. Hudspeth, 59 N. J. Law, 504, 527, 37 A. 67; M......
  • Pratt v. Boody
    • United States
    • New Jersey Court of Chancery
    • December 7, 1896

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