N.J. Bell Tel. Co. v. Del. River Joint Comm'n

• Decision Date: 16 September 1940
• Docket Number: No. 293.,293.
• Citation: 125 N.J.L. 235,15 A.2d 221
• Parties: NEW JERSEY BELL TELEPHONE CO. v. DELAWARE RIVER JOINT COMMISSION.
• Court: New Jersey Supreme Court

15 A.2d 221

125 N.J.L. 235

NEW JERSEY BELL TELEPHONE CO.

v. DELAWARE RIVER JOINT COMMISSION.

No. 293.

Supreme Court of New Jersey.

Sept. 16, 1940.

Mandamus proceeding by the New Jersey Bell Telephone Company, a corporation, against the Delaware River Joint Commission. On rule to show cause why writ of mandamus should not issue.

Rule discharged.

Argued May term 1940, before CASE, DONGES, and HEHER, JJ.

Frederic W. Smith and Smith & Slingerland, all of Newark, for relator.

Mitchell H. Cohen and T. Harry Rowland, both of Camden (Augustus F. Daix, 3d, of Philadelphia, Pa., of counsel), for respondent.

CASE, Justice.

The Delaware River Joint Commission, in building the subway authorized by the compact, R.S. 32:3-1 et seq., N.J.S.A. 32:3-1 et seq., by supplemental legislation, R.S. 32:5-1 and R.S. 32:5-2 et seq., N.J.S.A. 32:5-1 and 32:5-2 et seq., and by a contract with the City of Camden made under ordinance provision, utilized practically the entire subsurface of certain Camden Streets and in the construction used what is known as the "open-cut" method, whereby the street, from curb to curb, was excavated to a depth of twenty-six feet and the entire space beneath a newly constructed street pavement was then devoted to the purposes of the subway. The New Jersey Bell Telephone Company, by virtue of its corporate powers and under ordinance from and contract with the City of Camden, was, with its telephone equipment, including conduits, manholes and transmission wires, in active possession and use of a portion of that subsurface area. The Commission, before beginning work, demanded of the Telephone Company that it remove its interfering structures and gave information that arrangements would be made "to provide a new location suitable for your (the Telephone Company's) needs which will conform to the general plan of relocation of all underground structures in the vicinity". The Company responded with a denial that it was subject to compulsion except on reimbursement of expense but to avoid delay proposed that it proceed as requested leaving the question of liability for the cost to be determined later, with the understanding that the Company's rights should not "be deemed to have been forfeited or prejudiced in any litigation which may subsequently arise between the parties". The Commission, while denying liability, agreed, in substance, to the proposal. All phases of the work are now completed. The Commission refuses either to make payment or to proceed with condemnation under its right of eminent domain. This is the return of a rule calling upon the Commission to show cause why a peremptory or alternative writ of mandamus should not issue directing it to proceed to condemn the "real property of the relator, being the easements, rights of way, uses, licenses, incorporeal hereditaments, and interests in and to the subsurface along Fifth Street and adjacent thereto" and to fix the value thereof and the damages suffered by the relator "including the costs to the relator for the removal and relocation of its subsurface equipment, franchises, uses and interests and otherwise" and to pay the relator the compensation and damages so to be fixed. The alleged cost to the Company was $38,900, the items of which are not disclosed. The major expense was that of rigging up and maintaining an emergency system whereby the transmission wires and cables were suspended to the temporary street planking, "standing-by" with expert labor to give immediate attention to the faults which were likely to occur under that make-shift arrangement, keeping step with the progress of the main work and ultimately placing the wires and cables beneath the sidewalk surface.

Relator's brief was predicated mainly upon the provisions of the compact regarding...