Herr v. Bd. of Educ. of Newark

• Decision Date: 26 April 1912
• Citation: 83 A. 173,82 N.J.L. 610
• Parties: HERR v. BOARD OF EDUCATION OF NEWARK.
• Court: New Jersey Supreme Court

83 A. 173

82 N.J.L. 610

HERR

v. BOARD OF EDUCATION OF NEWARK.

Court of Errors and Appeals of New Jersey.

April 26, 1912.

(Syllabus by the Court.)

Error to Circuit Court, Essex County.

Action by Charles F. Herr against the Board of Education of Newark. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Charles M. Myers, of Newark, for plaintiff in error.

Riker & Riker, of Newark, for defendant in error.

SWAYZE, J. The board of education of Newark sought to condemn lands formerly owned by Paul Buchanan, and devised by him to his wife for life, with remainder to his daughter, subject to a power of sale in his executors. It made parties to the proceedings the defendants in error, who were owners of land in the vicinity of the tract sought to be condemned, and it alleged that they might have a claim against the property by reason of restrictive covenants. The commissioners made an award to the executors of Buchanan, and awarded nothing to the defendants in error, who thereupon took an appeal. Separate issues were framed, and separate judgments entered, in favor of each. The principal argument was directed to the question whether the owners of land not a part of the tract actually taken, whose lands are benefited by restrictive covenants, are entitled to compensation when the land is condemned for a purpose, which, when effectuated, will amount to a violation of the restrictive covenants. An important preliminary question is the proper procedure under the statute of 1900. C. S. 2182. This is not left in doubt by our decisions. The question was thoroughly considered by this court in Bright v. Platt, 32 N. J. Eq. 362. In that case a railroad company, under a charter containing provisions for condemnation similar to those contained in the act of 1900, condemned land that was subject to a mortgage, but failed to make the mortgagee a party. An award was made to the mortgagors. Subsequently the amount of the award was paid into the Court of Chancery, and the mortgagors sought to obtain it for themselves upon the theory that the award having been made to them was for their interest only, and that the mortgagee had no interest therein. We held that the fund did not represent merely the estate of the mortgagors, but the whole value of the land; and we said that an interpretation of the act "which devolved upon these commissioners the duty of estimating the value of each particular interest in the land to be taken would not only do violence to the language of the provisions, but would also impose upon these appraisers obligations which, with their limited means of investigation, their want of knowledge of nice legal and equitable distinctions and their inability to settle authoritatively the rights of the parties, they could not conscientiously assume to discbarge. Their simple duty is to ascertain what sum of money is an equivalent for the rights which the railroad company seeks to acquire, and the injuries it is to inflict by the construction and operation of its road." This decision has been consistently followed. In Crane v. Elizabeth, 36 N. J. Eq. 339, we held that the charter of Elizabeth which required compensation to be made to the owner or owners of the land did not require compensation to be made to mortgagees specifically. We used this language: "The action of the city authorities has thus the distinctive qualities of a proceeding in rem, a taking, not of the rights of designated persons in the thing needed, but of the thing itself, with a general monition to all persons having claims in the thing. When, by the appraisement of the commissioners, the price of the thing is fixed, that price stands instead of the thing appropriated, and represents all interests acquired. The Legislature has not imposed upon the city officials the duty of searching out all these interests and assigning to each its just equivalent. It has contented itself with the simple direction that the fund shall be paid to him who is presumably entitled to it, the general owner of the land. Where no other claimant intervenes, that course will usually meet the ends of justice. But if, in any special case, this owner ought not, in equity, to receive the fund, the Court of Chancery will, at the instance of any interested complainant, take charge of its proper distribution, and so secure those particular equities which the generality of the statute has left without express protection." These cases establish the practice, and, where a railroad company had paid the award into court, it was held that it was entitled to have the lien of the municipality for taxes discharged out of the fund, although the municipality had not been made a party to the condemnation proceedings. In re Sleeper, 62 N. J. Eq. 67, 49 Atl. 549. In Zimmerman v. Hudson & Manhattan R. R. Co., 76 N. J. Law, 251, 71 Atl. 127, a lessee sought to review the action of commissioners proceeding under the Act of 1900, upon the ground that they erred in reporting the value...