Dodge v. Pennsylvania E. Co.

• Decision Date: 10 January 1888
• Citation: 11 A. 751,43 N.J.E. 351
• Parties: DODGE et al. v. PENNSYLVANIA E. CO. et al.
• Court: New Jersey Court of Chancery

11 A. 751

43 N.J.E. 351

DODGE et al.

v. PENNSYLVANIA E. CO. et al.

Court of Chancery of New Jersey.

January 10, 1888.

(Syllabus by the Court.)

On application by William E. Dodge and others to enjoin defendants, the Pennsylvania Railroad Company and others, from elevating their road in Green street, in Jersey City, New Jersey, which street had, to the extent necessary, been vacated by authority of the city. Heard on bill and affidavits on the part of the complainants, and affidavits on the part of the defendants.

William C. Spencer, Edward A. Day, and Theodore Runyon, for complainants. James B. Vredenburgh, Gilbert Collins, and Joseph D. Bedle, for defendants.

VAN FLEET, V. C. Three hundred and ninety-five feet of a highway in Jersey City, known as Green street, have been vacated by the proper authority of that city. The general direction of Green street is from north to south, extending from Harsim us cove, on the north, to the basin of the Morris canal, on the south. The part vacated is now covered by the tracks of the Pennsylvania Railroad Company. The tracks and the street are on the same level; running, however, in different directions. The tracks run from west to east, and the street from north to south. The residue of the street, both north and south of the part vacated, will be left intact, and remain a public highway. The public right in the street, to the extent above indicated, has been surrendered to enable the Pennsylvania Railroad Company to elevate the tracks of their road in Jersey City from Brunswick street, a point about 1,500 yards west of Green street, to the end of their road. This surrender was made in fulfillment of a contract made by Jersey City with the Pennsylvania Railroad Company, under the authority of a statute passed in 1874. That statute enacts "that the proper municipal authorities, respectively, of any city of this state, be, and they are hereby, authorized and empowered to enter into such contracts with any of the railroad companies whose roads enter their cities, respectively, to secure greater safety to persons and property therein, whereby said railroad companies may relocate, change, or elevate their railroads within said cities, or either of them, as in the judgment of such municipal authorities, respectively, may be best adapted to secure the safety of lives and property, and promote the interests of said cities, respectively; and for that purpose shall have power to vacate, alter the lines, and change the grades of any streets or highways therein, and to do all such acts as may be necessary and proper to effectually carry out such contracts. And any such contracts, made by any railroad company or companies with said cities, or either of them, are hereby fully ratified and confirmed." Revision, p. 944, § 163. The plan adopted by the Pennsylvania Railroad Company for the elevation of their road, and approved by the proper municipal authority of Jersey City, renders it necessary that that part of Green street which has been vacated shall be closed, and the street at that point was vacated for the purpose of authorizing the railroad company to construct the road-bed on which their elevated tracks are to be laid within the lines of the street. There is no dispute that, if the defendants are allowed to carry out their present purposes, Green street, to the extent that it has been vacated, will be effectually and permanently destroyed as a way of any kind. The complainants claim that the destruction of that part of the street which has been vacated will do them irreparable injury, and they ask to be protected against such injury by injunction.

The complainants own lands on both sides of Green street, but none on that part of it which has been vacated. Their lands lie over 500 feet to the north of the place where the street has been vacated, with a cross-street intervening between their lands and the place vacated. Their lands are improved. Their bill describes their improvements on the west side of the street as "planing-mills, lumber-sheds, and other buildings for box-manufacturing and woodworking and storing lumber," and on the east side of the street as "a brick building for office and business purposes." The complainants' title originated in two deeds made by a corporation known as the "Associates of the Jersey Company;" the first bearing date May 20, 1844, and the second April 2, 1845. Long prior to the date of these deeds, and as early as 1804, Green street, although then under the tide-waters of the Hudson river, both in front of the lands now owned by the complainants, and at the point where it has been vacated, was, in legal theory, at least, a public highway. The Associates of the Jersey Company were, by their charter, made competent to take title to certain lands in fee, and to grant and dispose of the same at their pleasure, and they were also granted important municipal powers. They were given power to make and lay out streets. This power, it has been decided, embraced, not only the upland which they were authorized to acquire, but also land under water. Jersey City v. Canal Co., 12 N. J. Eq. 556. They exercised the power of laying out streets, by making a map on which the streets they intended to establish were laid down. This map was subsequently filed. It is known as the "Mangin Map." Green street appears upon it. It is one of the streets laid out by the associates. The streets laid down on this map became at once, on the adoption of the map, in consequence of the dual character in which the associates acted, public highways. Mr. Justice WHELPLEY, speaking for the court of errors and appeals, in the case just cited, said: "When, therefore, they [the associates] laid out these streets, they acted as owners of the fee in presenting the lands to the public for streets, and also as a municipal corporation in accepting them on behalf of the public; so that when the Mangin map was completed, and adopted by them as the plan of their city, the streets laid down upon it became such by an act of dedication made by the owners or the fee, and immediately accepted by a competent authority on behalf of the public, and also by act of laying out by legislative authority." The hands now owned by the complainants were conveyed by the associates to the persons in whom the complainants' title originated—to the founders of their title—by direct reference to the Mangin map. They were described in the deeds made by the associates as laid down on that map, and as abutting on and bounded by Green street; and they have been so described in each subsequent conveyance down to those under which the complainants hold. The complainants contend that these conveyances, according to well-settled principles of legal construction, vested in their predecessors in title, and consequently in them as the successors to that title, an easement and right of way over all the streets laid down on the Mangin map, and particularly in and over Green street, as appurtenant to the lands conveyed, which right, they insist, constitutes a part of their private property, of which they cannot, without a violation of their constitutional rights, be deprived without their consent, unless just compensation be first made. The defendants do not intend to make compensation.

The private right thus claimed is the sole foundation of this action. It has no other. Indeed, it can have no other. For injuries resulting from the violation or destruction of public rights, in cases where no private, individual right is injuriously affected, no private action can be maintained. Such wrongs can only be redressed by a suit on behalf of the public, either by indictment, or an information by the attorney general. The established rule on this subject is too familiar to require the citation of authorities. The public right in that part of this street which has been vacated has been surrendered. That surrender has been declared valid by the supreme court. Subsequently to the filing of the bill in this case, an application was made for a certiorari to remove the proceeding by which the vacation was effected. The writ was refused; the court declaring that the public right had been surrendered by competent authority, exercising a valid power. "A public road," as was said by Judge BLACK in Paul v. Carver, 24 Pa. St. 207, "belongs to nobody but the state; and, when the government sees proper to vacate it, the consequential loss, if any there be, must be Dome by those who suffer it, just as they would bear what might result from a refusal to make it in the first place." Except in the instances where statutory provision to the contrary exists, the law gives no compensation for losses resulting from a valid surrender of public rights. And this is so, because, ours being a government by the people, such surrenders can only be made by the people's representatives; and as they generally hold office for short periods of time, and must exercise their power in the face of the people, it is assumed that their power in this respect will never be exercised except when the public good imperatively demands it.

The complainants, to entitle themselves to the writ they ask, must have demonstrated that, on the undisputed facts of this case, and according to the established law of this state, they have such right in that part of Green street which has been vacated as they claim. The rule upon this subject is jurisdictional. It is a limitation upon the power of the court, which the court cannot transcend. Coach Co. v. Railroad Co., 29 N. J. Eq. 299; Leonard v. Hart, 42 N. J. Eq. 416, 7 Atl. Rep. 865. The point in dispute, it will be perceived, presents a pure question of legal title, which may be stated as follows: What right did the deeds made by the associates grant to the complainants' original predecessors in title in Green street, not in front of the lands conveyed, nor in that part of Green street extending, both north and south of the lands...