Goodavage v. State Highway Comm'n

• Decision Date: 16 August 1924
• Parties: GOODAVAGE v. STATE HIGHWAY COMMISSION.
• Court: New Jersey Court of Chancery

125 A. 919

GOODAVAGE

v. STATE HIGHWAY COMMISSION.

Court of Chancery of New Jersey.

Aug. 16, 1924.

(Syllabus by the Court.)

Suit by John Goodavage against the State Highway Commission. On application for preliminary injunction. Application denied.

Frank S. McKee, Jr., of Bridgeton, for complainant.

Edward L. Katzenbach, Atty. Gen., and Harry R. Coulomb, Asst. Atty. Gen., for defendant.

WALKER, Ch. The complainant is the owner of a tract of farm and meadow land in Millville, binding upon Second street. The state highway commission has been for some time last past engaged in building, grading, and paving that street. At a point in the frontage of complainant's land, along Second street, the defendant has commenced to build a water catch-basin, and to lay a drain pipe from that basin to collect drainage and surface water from a large area of South Millville. Complainant alleges that it is the intention of the state high commission to divert and cast all of said waters in large quantity from the pipe on and over his land, and claims that his private property is intended to be used for the installation of the catch-basin and discharge pipes; that, as a result of the grading, building, and paving of the road, large quantities of surface water are being allowed to collect and flow on his land, the flowing of water having already caused washouts and displaced earth, etc.; and he prays that the state highway commission may be enjoined from constructing any of its works upon his land, and also from casting accumulated water thereon.

Defendant admits that the water collected by this scheme will be discharged upon complainant's property, and asserts that the question is as to defendant's right to do that thing. One matter of defense relied upon is that the complainant has given permission for the doing of the work. It is in proof that in writing, dated March 21, 1923, and signed by the complainant, he granted the highway department permission to widen the fill on his property in accordance with stakes placed by the highway department; and the defendant argues from this that the complainant is estopped from demanding that the state shall not discharge the water in a pipe laid through the fill on his land. Defendant denies that the consent has any such effect. But what, if any, bearing this particular document may have upon the case at bar need not be decided, because in my judgment the remedy of the complainant is by a suit at law for a mandamus to compel the highway commission to condemn such of his land as it has entered upon and appropriated, if any, and such rights thereon as it proposes to acquire, and not for an injunction in this court.

By P. L. 1919. p. 523, § 12 (e), the state highway commission has power to acquire any lands or rights therein by condemnation, if necessary, and has the power to enter upon and take property in advance of making compensation therefor in any case where it cannot acquire land or other property by agreement with the owner. It is true there is no proof in this case showing that the state highway commission endeavored to agree with the owner as to...