Chamberlain v. Elizabethport Steam Cordage Co.

• Decision Date: 16 February 1886
• Citation: 41 N.J.E. 43,2 A. 775
• Parties: CHAMBERLAIN and others v. ELIZABETHPORT STEAM CORDAGE CO. and others.
• Court: New Jersey Court of Chancery

2 A. 775

41 N.J.E. 43

CHAMBERLAIN and others

v. ELIZABETHPORT STEAM CORDAGE CO. and others.

Court of Chancery of New Jersey.

February 16, 1886.

Bill for relief. On final hearing on pleadings and proofs.

R. V. Lindabury, for complainants.

J. Alward, for defendants.

THE CHANCELLOR. The bill stales that the complainants are, and have been for at least three years past, the owners in fee of a lot of land at the corner of Elizabeth avenue and Butler street, in the city of Elizabeth, on which are two houses and a barn; that the defendants have begun to build in that city a railroad for cars to be drawn by steam locomotive engines, which is to run from the defendants' land near Smith street (which is the next street parallel to Butler street on the south-east) through and upon Smith street to Elizabeth avenue; thence along and upon the avenue to Butler street, and in front of the complainants' land, to a point about 100 feet from the corner of that street and the avenue; and that the complainants' property has a frontage on Butler street of about 135 feet, and on Elizabeth avenue of about 76 feet. The defendants' property is on the opposite corner of the avenue and Butler street. The bill alleges that, if the road be constructed as proposed, it will be laid upon the land of the complainants in front of their lot in and constituting part of the street, and will do great damage to the complainants' property. The defendants, by their answer, admit that they have begun to build the road as stated in the bill, and substantially admit also that they intend, if not prevented from doing so, to complete and operate the road, the cars upon which are to be drawn by steam locomotives. They deny that the road, or the operation thereof as proposed, will injure the complainants' property, and they claim that they have a lawful right to lay the track and operate the road under authority given them to do so by ordinance by the city of Elizabeth.

The complainants' land is bounded in their deeds therefor on two sides by the side lines of Elizabeth avenue and Butler street, respectively. By legal presumption they own the land in front of their property to the middle of the street, subject to the right of way. The imposition of the burden of a railroad operated by steam upon the latter land (in and constituting part of the street) is a taking of their property for that purpose, and it cannot be lawfully taken for such use, if private, without their consent; nor can it be...