Mont Clair Military Acad. v. N. Jersey St. Ry. Co.
| Decision Date | 29 December 1900 |
| Court | New Jersey Supreme Court |
| Parties | MONT CLAIR MILITARY ACADEMY v. NORTH JERSEY ST. RY. CO. |
Action by the Montclair Military Academy against the North Jersey Street-Railway Company. Plaintiff's declaration was in three counts, to the first and second of which defendant pleaded issuably, and demurred to the third, to which demurrer plaintiff filed a rejoinder. Judgment on demurrer for plaintiff.
Argued November term, 1900, before the CHIEF JUSTICE, and GUMMERE and FORT, JJ.
Washington B. Williams, for plaintiff.
Coult & Howell, for defendant.
The defendant was incorporated for the purpose of constructing, operating, and maintaining street railroads. By the act of 1894 (P. L. 1894, p. 374; 3 Gen. St. 3247) it was enacted that no railroad should be constructed in, over, and upon any street, avenue, highway, land, or other public place in any municipality, town, township, village, or borough of this state, except upon the consent of the governing body of such municipality, town, township, village, or borough, which consent should only be granted upon a petition of the corporation, and after public notice and a hearing before the governing body, and that the governing body might grant or refuse permission to construct, maintain, and operate such street railroad as prayed for in said petition, or, in their discretion, might consent to the construction, maintenance, and operation of such street railway upon part of the streets, highways, or public places designated in such petition, and refuse permission to construct, maintain, or operate said street railway upon the remainder of such streets or public places, and that the location thus granted by the governing body of such municipality, etc., should be the true location of the tracks of said street railway, etc., with a proviso that such petition for the designation of route, construction, maintenance, or operation of a street-railway company should not be granted by the governing body of any municipality, etc., until there be filed with the clerk of such municipality, etc., the consent in writing of the owner or owners of at least one-half in amount in lineal feet of property fronting on such street, highway, avenue, or other public place, or upon the part of such street, highway, avenue, or other public place through which permission to construct, operate, and maintain a street railway is asked. In the count demurred to the material allegations are these: First. That the defendant agreed with the plaintiff for certain grants, consents, or licenses for an easement or privilege to construct and maintain an electric street railway on and in front of certain lands of the plaintiff in Montclair, and also on and in front of certain adjoining lands contracted for and controlled by the plaintiff, in and adjoining Bloomfield avenue, which grants, consents, or licenses were necessary or valuable to the defendant, to qualify it to obtain permission from the township committee of the township of Montclair to construct, maintain, and operate said electric railway through said avenue. Second. That the defendant agreed with the plaintiff, as the price and consideration for said grants, consents, or licenses, to sell or procure to be sold to the plaintiff $10,000 of the bonds of the defendant then issued or to be issued, and $20,000 of its shares of capital stock, within such reasonable time thereafter as the said plaintiff should determine, upon application by the plaintiff for the same, and upon its paying, as the defendant might direct, $10,000 in cash, thereby giving to the plaintiff, in return for the said grants, consents, or licenses, an option to take said bonds and stock on payment of $10,000 in cash within such reasonable time thereafter as the plaintiff should determine. And it is averred that at the time of making said agreement, and upon the faith thereof, the plaintiff executed and caused to be executed and delivered to the defendant the said grants, consents, and licenses, in writing, and the defendant accepted the same and made use thereof by depositing them with the township committee, as a precedent condition and qualification for the grant of authority which was then made by the township committee to the defendant to construct, maintain, and operate its railway in said avenue on and in front of the said lands owned and controlled by the plaintiff, and that the defendant did, upon receiving said grants, consents, and licenses, and said authorization from the township committee, construct, and has ever since maintained and operated, its said railway in said avenue, and on and in front of said lands. This count also contains the averment that within a reasonable time thereafter, etc., the plaintiff determined to exercise its option by taking said bonds and stock and paying said cash, and notified the defendant thereof, and demanded the said bonds and stock of the defendant, then and there tendering itself and being ready to pay the said cash, but the defendant denied the existence of said agreement, and refused to accept said payment or deliver said bonds or stock, or any part thereof, and has always since refused and still refuses so to do. In this count is contained the averment that the said bonds and stock were at the time of such refusal, etc., worth more than the said sum of $10,000, to wit, etc., whereupon the plaintiff claims damages.
The demurrer to the declaration admits all the facts set out which are properly pleaded. The case, then, briefly, is this: The plaintiff was the owner of lands fronting on the street in question. Its title extended, presumptively, to the middle line of the street. The railroad company proposed to lay a line of electric railway in the street in front of the plaintiff's lands. By the statute the consent of a certain proportion of the owners of lands fronting on the street was necessary to authorize the township authorities to make the grant to the railway company. To accomplish its purposes the company bargained and agreed with the plaintiff for certain grants, consents, or licenses, which were necessary and valuable to the defendant to qualify it to obtain permission from the township committee to construct, maintain, and operate said railway, and agreed to pay therefor the consideration named; that the plaintiff executed and delivered to the defendant the said grants, consents, or licenses, in writing; that the defendant accepted them and made use thereof by depositing them with the township committee, as a precedent condition and qualification for the grant of authority which was then and there made by the township committee to the defendant to construct, maintain, and operate its railway in said avenue and on and in front of the said lands owned or controlled by said plaintiff and elsewhere in said township, and that the defendant did, upon receiving said grants, consents, and licenses and authorization from the township committee, construct and ever since has maintained its railway on the said avenue, and on and in front of said lands. These averments are such as would make a good count for the breach of a contract of sale, viz. a contract of bargain and sale, agreement to pay, delivery and acceptance of the thing contracted for, with a sufficient breach. On the face of this pleading the plaintiff is entitled to recover.
The demurrer filed by the defendant is based upon the contention that the contract set forth in the declaration is Inoperative and void, as against public policy. It is undeniable that the owner of lands fronting on a public street has a property right in fee to the middle line of the street, subject to the public easement, and another property right in the whole street, by way of an easement of the right of way. It is also undeniable that the use of a public street by the location and use of it by electric cars may be injurious to the property of an abutting owner. The general rule of law is that a person having property, or a right in the nature of property, may enter into a contract to dispose of or incumber the same, which shall be enforceable in a court of law. Independently of any legislative authority, it seems to be quite clear that, if one of these companies should contract with abutting owners for the privilege of laying its tracks in front of their premises, such a contract would have sufficient consideration, and would be valid and enforceable at law. The act of legislature under which the defendant was organized confers upon such companies the right to erect poles and use the trolley system, so far as a public easement is concerned, with a view to public convenience in the use of the streets; and if acts done under the color of the statute, or of an ordinance in conformity therewith, be found to be an unlawful invasion of the rights of private property, an action will lie, in which neither the act nor the ordinance would be a justification. Roebling v. Railway Co., 58 N. J. Law, 667, 34 Atl. 1090. In the present instance the written consent given by the plaintiff was to the construction, operation, and maintenance of an electric street surface railway, to be operated by the overhead trolley system, with the necessary poles and wires strung thereon for the proper equipment of the same, in front of said premises on said highway. Such a consent would be a defense to any action brought by the plaintiff for damages for that use of its property. The power to grant to the defendant the use of the street for its railroad purposes was vested in the township authorities, but the legislature prohibited such a grant being made, unless by the consent of...
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