Morris & E. R. Co. v. City of Orange

• Decision Date: 27 June 1899
• Citation: 43 A. 730,63 N.J.L. 252
• Court: New Jersey Supreme Court
• Parties: MORRIS & E. R. CO. et al. v. CITY OF ORANGE.

43 A. 730

63 N.J.L. 252

MORRIS & E. R. CO. et al.

v. CITY OF ORANGE.

Court of Errors and Appeals of New Jersey.

June 27, 1899.

Error to supreme court.

Certiorari from the supreme court of New Jersey upon the petition of the Morris & Essex Railroad Company and others against the city of Orange for the review of an assessment of damages and benefits in laying out a street across plaintiff's tracks. There was a judgment for the plaintiffs, and the defendant brings error. Affirmed.

Thomas A. Davis, Colie, Swayze & Titsworth, and Frederick T. Johnson, for plaintiff in error.

McGee, Bedle & Bedle and Cortlandt Parker, Jr., for defendants in error.

DEPUE, J. This writ of error is sued out by the city of Orange to review the judgment of the supreme court in the case of the state, the Morris & Essex Railroad Company, and the Delaware, Lackawanna & Western Railroad Company, prosecutors, against the mayor and common council of the city of Orange, on certiorari, setting aside an assessment of damages and for benefits in laying out and opening Hickory street from South Main street to Parrow street. By an ordinance finally adopted January 4, 1892, the city council laid out Hickory street within termini named, crossing the railroad of the prosecutors. By section 30 of the charter of Orange, the common council was required, from time to time, to appoint five commissioners of assessment to be known by the name of the "Board of Assessments," whose duty it should be to assess damages in favor of any owner or owners of any lands or real estate that may be taken for, or may be damaged by, any improvement such as the laying out or opening of any street, highway, etc., and also to assess benefits. Commissioners were appointed to assess the damages for the opening of this street At a hearing before the commissioners, a representative of the company presented a specification in writing of the damages, both immediate and prospective, claimed by the company as occasioned by the crossing of Hickory street over their track, amounting to $18,270. Included in this specification was a claim for the value of land proposed to be taken, $490; cost of grading and constructing planking and other necessaries of the crossing, $120; the annual cost of maintaining the crossing, $40 per annum; cost of reconstructing switch to conform to street grade, $250; loss on the value of the switch by reason of the street, $300; cost of culvert pipe and mason work on culvert, $300; cost of erecting two gates on either side of the street, $350; cost of maintaining the gates themselves, $50; annual cost of two flagmen, $730. The capitalization of the several sums mentioned amounted to $18,270. The commissioners rejected this claim, and made an assessment to the company of the sum of one dollar for damages. On the return of the report to the common council, the committee on assessment confirmed the assessment of damages reported by the commissioners, and made an assessment against the company for benefits to the amount of one dollar, and the report of the committee was adopted by the common council. This proceeding of the municipal body was brought under review in the supreme court by certiorari.

In Paterson, N. & N. Y. R. Co. v. City of Newark, 61 N. J. Law, 80, 38 Atl. 689, which was a case in its facts and circumstances identical with this case, the supreme court held that "the laying out of a highway across a railroad is a taking of the company's property for public use, and entitled it to compensation therefor; and compensation for such taking includes the making good to the company the money expended by it in erecting, maintaining, and operating gates at the crossing, provided such gates are necessary for the proper protection of the public and for the safe operation of the company's railroad." On the hearing of the writ of certiorari in this case, the supreme court set aside the assessment to the prosecutors, and appointed commissioners to act as appraisers, and ordered that a new assessment in favor of the prosecutors should be made in accordance with the principles laid down in the case above cited. This writ of error brings up for review the judgment of the supreme court, and involves a consideration of the reasons which controlled the court in its Judgment, as well as the legal principles which should control in setting aside or sustaining the proceeding under review.

The company has title to the locus in quo by a deed from William Pierson, Jr., and wife, February 23, 1836, granting the tract of land described to the Morris & Essex Railroad Company, and to its successors and assigns, forever, with the right, liberty, and privilege of entering upon the said tract, and to take possession of, hold, have, use, occupy, and excavate the same, and erect embankments and bridges and other works necessary to lay rails, and to do all things which should be necessary or suitable to the completion and repair of the company's road or roads, to have and to hold unto the said company, and to its successors and assigns, forever, for the purposes above mentioned, and for all other purposes mentioned in said act of incorporation. By this conveyance the company took a fee-simple determinable,—a qualified fee for the purposes mentioned in the habendum. United States Pipe-Line Co. v. Delaware, L. & W. R. Co., 62 N. J. Law, 254, 41 Atl. 759.

It is conceded that compensation should be made to the railroad company for the opening of the street across its track. The city charter (P. L. 1869, p. 213) provides, in section 64, for compensation under the designation of "damages," and in section 65 makes it the duty of the commissioners to assess damages with due regard to the value of the land or real estate taken or damaged by said improvement. In giving effect to the city charter, the primary inquiry in every case is whether lands have been taken, and what damages are legally the result of the improvements, and assessable as damages for the laying out and opening of the street. The street in this case was laid across the company's railroad at grade. The opening of the street did not deprive the railroad of the use of its tracks for railroad purposes. Under the condemnation of a right to lay streets across a railroad track, or to lay the track of one railroad across another, nothing is acquired but a right of way. The place of crossing will remain in the common use of the parties, for the exercise of their respective franchises. New Jersey S. R. Co. v. Long Branch Com'rs, 39 N. J. Law, 28; National Docks & N. J. J. C. Ry. Co. v. State, 53 N. J. Law, 217, 21 Atl. 570. As between two railroad companies having the common use of a place of crossing, the right of the two companies in the user is equal; but, with respect to user as between the public using the highway and the railroad company using its tracks for the passage of trains, the right of the railroad company is, in law and in fact, superior. It was accordingly held, in Railroad Co. v. Bayonne, that, when a highway is laid out across a railroad, the owner of the railroad is not, as the owner of land ordinarily is, excluded from the beneficial use of his property, and hence the value of the land is not a legitimate element of compensation. 51 N. J. Law, 428, 17 Atl. 971. The principle that a company over whose track a public road is constructed is not excluded from the beneficial use of its railroad, and is not entitled to compensation as for lands taken, is well settled. This case, therefore, resolves itself purely into an examination of the damages to be compensated for and the rule for their admeasurement.

The company had constructed a switch for the storing of cars and convenience in conducting its business, which extended over this street to the next street over the railroad. This switch was lower than the company's main tracks, and with the street across the main track and the switch the latter must be raised and graded for convenient use. The readjustment of this switch to conform to the grade of the street and to the company's main track would occasion expense to the company. In Railroad Co. v. Bayonne, supra, an injury of this character was held to be such as the company was entitled to be compensated for. In that view we concur.

The main controversy is with respect to the company's claim for the cost of erecting and maintaining gates and the expense of flagmen to manage the gates. The company relies upon Paterson, N. & N. Y. R. Co. v. City of Newark, supra, to sustain this claim. In that case it was contended by the city of Newark that the cost of constructing, maintaining, and operating safety gates in virtue of an ordinance of the city was a police regulation, pure and simple, and that no person could recover damages on account of being compelled to comply with the police regulations of the municipality. But the supreme court discredited that contention, as based upon a misapprehension of fact, and held that the railroad company was entitled to compensation in that respect, for the reason that the necessity for gates at a highway crossing over a railroad did not at all depend upon the existence or the nonexistence of an ordinance requiring their erection, for, unless the proper protection of the public makes them necessary, such an ordinance would be unreasonable and void; and, on the other hand, if the safety of the public and the safe operation of the railroad required gates at such crossing, it would be necessary for the company, for its own protection, to erect them, even if no ordinance to that effect existed, and the question whether or not the company was entitled to compensation for such outlay depended on whether it was rendered necessary by the laying out of the street across the company's railroad.

The charter of the city of Orange gives the municipality power to pass ordinances to regulate the speed of locomotive engines upon any railroad in the town, and to compel any railroad to...