Bd. of Chosen Freeholders of Hudson County v. Jersey City, H. & P. St. Ry. Co.

• Decision Date: 26 November 1913
• Citation: 88 A. 1061,85 N.J.L. 179
• Parties: BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY v. JERSEY CITY, H. & P. ST. RY. CO.
• Court: New Jersey Supreme Court

88 A. 1061

85 N.J.L. 179

BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY

v. JERSEY CITY, H. & P. ST. RY. CO.

Court of Errors and Appeals of New Jersey.

Nov. 26, 1913.

Vredenburgh, J., dissenting; Garrison, White, and Minturn, JJ., dissenting in part.

Appeal from Supreme Court.

Action by the Board of Chosen Freeholders of the County of Hudson against the Jersey City, Hoboken & Paterson Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John A. Dennin, of Jersey City, for appellant.

William D. Edwards and Gilbert Collins, both of Jersey City, and Frank Bergen, of Newark, for respondent.

GUMMERE, C. J. This action was brought by the Board of Freeholders to recover from the defendant company a portion of the cost incurred by the board in the laying of a granite block pavement upon a portion of the Paterson plank road, a public highway of the county, through which the company operates an electric railway. This railway was originally constructed by the Jersey City, Hoboken & Rutherford Electric Railway Company, a corporation organized in 1893, under the Street Railway Act of 1886 (4 Comp. St 1910, p. 4998). The eighteenth section of that act provides that every company incorporated under it "shall keep in repair to the satisfaction of the local authorities the paving, upper planking or other surface material, of the portion of streets, roads and bridges occupied by its tracks, and if such tracks occupy unpaved streets or roads, shall, in addition, so keep in repair eighteen inches on each side of the portion occupied by its tracks." The Jersey City, Hoboken & Rutherford Electric Railway Company, before building its railway, applied to the Board of Freeholders of Hudson County for permission to construct it along the Paterson plank road, and such permission was granted upon certain conditions, one of which—and the only one pertinent to the present controversy—was that the tracks of its railway should be constructed and maintained in such manner as to afford all persons, vehicles, and the like, all proper and reasonable facilities for crossing, entering on, and leaving the same, and that the portions of the highway occupied by its railway should be kept and maintained in a good state of repair at the expense of the company, so as that at all times it should be convenient and safe for public travel. This condition was agreed to by the company, and its road was constructed. In 1899 the property and franchises of this company became vested in the present defendant, and it thereupon assumed the performance of all the duties and obligations which rested upon its predecessor, either by statute or by contract; and the principal question in dispute was whether, by virtue of section 18 of the act of 1886, or by the condition attached to the grant of permission to construct the railway on the Paterson plank road, the defendants were bound to pay to the board so much of the total cost of laying the granite block pavement as represented the sums paid for laying it between the tracks of the railway and adjacent thereto, or any other proportionate part thereof.

In the case of Dean v. Paterson, 67 N. J. Law, 199, 50 Atl. 620, one of the questions involved and decided was whether or not, under the provisions of an ordinance requiring a street railway to keep and maintain the portion of a street inside its rails, and for a designated distance outside of them, in good and sufficient repair, the company was under a legal obligation to repave within those limits with a new and different material selected by the municipality. It was held by the Supreme Court that the duty to keep in repair did not carry with it the obligation to pay a proportion of the expense of repaving. And on review by this court the rule thus laid down was expressly approved. S. C. on error, 68 N. J. Law, 664, 54 Atl. 836. On the trial below the court, following this rule, held that the present action could not be maintained, and directed a nonsuit The judgment entered pursuant to this direction is brought up by the present appeal.

It is now urged by counsel for the appellant that the rule in Dean v. Paterson is opposed to that adopted by the courts of some of our sister states, which hold that the duty to repair carries with it the duty of paying a proportionate part of the cost of repaving when the public interests require that a street shall be so improved, and that, therefore, it should not be repudiated by us. But this fact (conceding that counsel is right in the view which he takes of the effect of the decisions to which he refers) does not afford any reason for our departing from a rule of construction which we have once laid down upon a full consideration; for the most that can be said is that in determining the construction to be given to language which is fairly susceptible of one or the other of two meanings, different courts have held diverse views thereon.

As was said by Chancellor Kent, in discussing the doctrine of stare decisis: "When a decision upon a point of law has been made upon solemn argument and upon mature deliberation, the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions by it. When a rule has once been deliberately adopted and declared it ought never to be disturbed by the same court, except for very urgent reasons, and upon a clear manifestation of error." 1 Kent, Com. 475. To the same effect are our own decisions in State v. Taylor, 68 N. J. Law, 276, 53 Atl. 392, and Bowman v. Freeholders of Essex, 73 N. J. Law, 543, 64 Atl. 1010.

The judgment of nonsuit cannot be reversed upon the ground that the rule of law applied by the trial court was unsound.

Recognizing that the rule in Dean v. Paterson must be accepted as the law, for the purposes of the trial, counsel for the Board of Freeholders sought to avoid its effect by attempting to prove that the obligation of the defendant company to keep in repair that portion of the highway designated by the statute and by the resolution of permission, could not be kept except by the expenditure of moneys largely in excess of the proportionate cost of laying down the new pavement. Upon objection testimony tending to show this fact was excluded, and it is urged that in this there was harmful error. The offer was properly overruled. The obligation of the company was to repair. The cost to it of doing so, no matter how burdensome, was inconsequential. It could not escape that obligation by showing that it was to the public interest to have the whole street repaved, and that it was willing, if the Board of Freeholders would do this, to agree to pay so much of the cost thereof as represented the expense incurred by the laying of the new pavement upon that portion of the street which it was obliged to keep in repair. In other words, it could not relieve itself of an onerous duty which it had assumed by doing something else outside of the scope thereof, except by consent of the party for whose benefit the duty was to be performed. And the converse is equally true. The Board of Freeholders could not, without the consent of the defendant company, substitute another and less onerous duty in...