Good Deal of Ivy Hill, Inc. v. City of Newark

• Decision Date: 09 May 1960
• Docket Number: No. A--88,A--88
• Citation: 160 A.2d 630,32 N.J. 263
• Parties: GOOD DEAL OF IVY HILL, INC., a corporation of the State of New Jersey, Plaintiff-Appellant, v. CITY OF NEWARK, a municipal corporation of the State of New Jersey, et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 263

32 N.J. 263

160 A.2d 630

GOOD DEAL OF IVY HILL, INC., a corporation of the State of New Jersey, Plaintiff-Appellant, v. CITY OF NEWARK, a municipal corporation of the State of New Jersey, et al., Defendants-Respondents.

No. A--88.

Supreme Court of New Jersey.

Argued Feb. 23, 1960.

Decided May 9, 1960.

Leonard Lieberman, Newark, argued the cause for plaintiff-appellant (Bernard Hellring, Newark, attorney).

James E. Abrams, Newark, argued the cause for defendants-respondents (Vincent P. Torppey, Newark, attorney; Jacob M. Goldberg and Joseph A. Ward, Newark, on the brief).

The opinion of the court was delivered by

FRANCIS, J.

Plaintiff is the lessee of a tract of land located wholly in the Town of Maplewood, New Jersey. Its westerly boundary fronts on a thoroughfare known as Irvington Avenue in that town; the easterly and southerly property lines border on the City of Newark; the northerly line is 341 feet long, more or less, all but 82.71 feet of which borders on Newark. A part of this northerly sideline, 60.25 feet in length, runs along the southern extremity of Eastern Parkway, a public street running generally north and south, and located wholly in the City of Newark, which comes to a dead end at that point. The terminus of the street at that portion of plaintiff's sideline is the boundary line between the two municipalities. No part of Eastern Parkway is in Maplewood and no part of plaintiff's property is in Newark.

The section of Newark through which Eastern Parkway passes and dead ends is a substantial one-family home district. The city erected (at a time not fixed in the testimony) and maintained for at least 15 years prior to October 1957 a two-rail wooden barrier, painted white, at the dead end of the street. This was long before plaintiff ever acquired its leasehold interest in the Maplewood property. The barrier extended across the full width of the vehicular traveled portion and was intended to mark the end of the roadway. It was designed in part at least as a safety measure, calling attention to the limitation on travel and serving to prevent vehicle operators from running upon plaintiff's land and perhaps suffering injurious consequences.

Plaintiff leased the Maplewood premises for the purpose of operating a supermarket. Prior thereto its representative had made a survey of the area and was fully familiar with the barrier at the end of Eastern Parkway. The market, entrance to which was on Irvington Avenue in Maplewood, opened for business on October 14, 1958. Two weeks prior thereto Newark had declined to accede to a request by plaintiff that the barricade be removed. In fact, two days after the opening, the city extended it beyond the curb line, thereby blocking the ends of the public sidewalks on both sides of the street. The rear of the supermarket building, where the loading and unloading platform is located, is fairly close to the railing. Other nearby portions of the grounds are used for customer parking. There is no doubt that it would be a valuable accommodation to the plaintiff if the trucks and parkers could invade Newark's residential area by using Eastern Parkway as a means of entrance, and particularly of exit.

It is undisputed that Eastern Parkway was never used for ingress or egress from plaintiff's lessor's premises. And there is not the slightest intimation in the record that any condition of the back title would justify a claim of right to do so. It is of interest, to note that at the time of the hearing, an additional entranceway from Irvington Avenue was under construction by plaintiff.

The present action was instituted nine days after plaintiff's opening. The relief sought is a mandatory injunction requiring removal of the barrier and damages for loss of business allegedly resulting from the failure to have adequate entrance and exit passages for its customers. The trial court denied the injunction and entered judgment for the city. Review was then sought in the Appellate Division and we certified the matter before argument in that tribunal.

A municipal corporation is a creature of the Legislature. Its powers are derived from that source and to some extent from the Constitution. See, e.g., Art. 4, § 7, par. 11, 1947 Constitution. Its boundaries are established by the Legislature. Lower Township v. City of Wildwood, 130 N.J.L. 186, 31 A.2d 807 (E. & A.1943), affirmed 129 N.J.L. 22, 28 A.2d 74 (Sup.Ct.1942). Such boundaries mark the limit of the local government's jurisdiction and authority. 2 McQuillin, Municipal Corporations (3d ed. 1949), § 7.02, p. 256. No extramural authority exists unless expressly granted. 2 McQuillin, supra, § 10.07, p. 590. For example, see Aviation Services v. Bd. of Adjustment of Hanover Tp., 20 N.J. 275, 282--283, 119 A.2d 761 (1956); Borough of Verona v. Township of Cedar Grove, 49 N.J.Super. 293, 139 A.2d 584 (Law Div.1958).

Obviously, a municipal corporation may lay out and construct public streets within its borders. Such streets may be treated as a local improvement and the property owners benefited may be assessed according to the benefits received. N.J.S.A. 40:56--1. Authority exists in some situations to extend a road into an adjoining municipality. N.J.S.A. 40:56--3; Borough of Vernona v. Township of Cedar Grove, supra. In such case, if the extension is declared a local improvement, assessments for benefits may be imposed 'on any lands or real estate benefited thereby In the municipality laying out, opening and constructing such street or highway.' R.S. 40:56--2, N.J.S.A. (Emphasis added.) The legislative implication is plain that property owners in the adjoining municipality cannot be subjected to a charge for the improvement.

Undoubtedly a local governing body may build a road and terminate it at the boundary line of the municipality, or some distance short of that line. There is no duty to go farther in order to provide access to the road for a citizen of the adjoining community whose land is just beyond the geographical limit. In any event, the municipality creating the improvement has neither power nor jurisdiction to impose any assessment therefor on the property owner over the line.

At the oral argument the parties were in agreement that if defendant had ended Eastern Parkway a few feet short of the dividing line between Newark and Maplewood and erected a wall from the terminus of the road to the Maplewood line, plaintiff would have no right to seek removal of the obstacle. This is because if any land intervened, the plaintiff could not be considered an abutter. Royal Transit v. Village of West Milwaukee, 266 Wis. 271, 63 N.W.2d 62 (Sup.Ct.1954); 10 McQuillin, supra, § 30.55, p. 657. In this case, the fence and its supporting posts mark the boundary line, all of the physical structure being on the Newark side. The survey in evidence seems to show the fence a little bit north, that is, on the Newark side, of the line. The distance is not indicated, nor was the surveyor produced, and throughout the proceedings the parties dealt with the matter on the basis that the fence was at the boundary line. Nevertheless we fail to perceive why the principle to be applied in the determination of the case should be any different if the fence ended ten feet short of the city limit rather than precisely on it.

The briefs contain much argument on the question whether plaintiff is entitled to use Eastern Parkway as an abutting owner. Concededly it has no ownership or interest in the roadbed. Ordinarily, abutting owners are spoken of as those whose property fronts on the sidelines of a street. Such persons clearly cannot be denied access. Barnett v. Johnson, 15 N.J.Eq. 481 (E. & A.1863). The courts of this State have not had occasion to decide whether an owner of land, a portion of the Sideline of which land is at the terminus of a dead end street, is an abutting owner. In some jurisdictions it has been held that the owner of premises at the end of a Cul-de-sac is not an abutter. Friscoville Realty Co. v. Police Jury, 127 La. 318, 53 So. 578 (Sup.Ct.1910); Kingshighway Supply Co. v. Banner Iron Works, 266 Mo. 138, 181 S.W. 30 (Sup.Ct.1915); Goldrich v. Franklin Gardens Corp., 282 App.Div. 698, 122 N.Y.S.2d 56 (1953); Thomas v. Jultak, 68 Wyo. 198, 231 P.2d 974 (Sup.Ct.1951). In others, where the public road has been used for a long time as a means of access or is a necessary means of access to such land, the owner thereof has been declared an abutter. Johnson v. Town of Watertown, 131 Conn. 84, 38 A.2d 1 (Sup.Ct.Err.1944); Messinger v. City of Cincinnati, 36 Ohio App. 337, 173 N.E 260 (Ct.App.1930); Royal Transit v. Village of West Milwaukee, supra. In the case before us it is pertinent to note that Eastern Parkway is not necessary for purposes of ingress or egress to and from plaintiff's premises, and that it has never been used for such purpose, even as a matter of convenience. On the contrary, the facts demonstrate a clear intention by the city to provide a public road terminating at its border and to prevent the non-resident plaintiff from using it as an incidental additional and convenient means of access to its land. In our judgment, the test to be applied in the factual context of this case (and our holding extends no farther than this case) in deciding if plaintiff is an abutting owner, is whether its property would be subject to assessment for construction or improvement of the street. Kingshighway Supply Co. v. Banner Iron Works, supra. Manifestly, the Legislature has provided no basis for any such charge.

But of greater significance in evaluating the claim of right...