Nat'l Docks & N. J. J. C. Ry. Co. v. State

• Decision Date: 04 March 1891
• Citation: 53 N.J.L. 217,21 A. 570
• Parties: NATIONAL DOCKS & N. J. J. C. RY. CO. v. STATE, (UNITED N. J. RAILROAD & CANAL CO. et al., Prosecutors.)
• Court: New Jersey Supreme Court

21 A. 570

53 N.J.L. 217

NATIONAL DOCKS & N. J. J. C. RY. CO.

v. STATE, (UNITED N. J. RAILROAD & CANAL CO. et al., Prosecutors.)

Court of Errors and Appeals of New Jersey.

March 4, 1891.

(Syllabus by the Court.)

Error to supreme court.

Gilbert Collins and John R. Emery, for plaintiff in error.

James B. Vredenburgh and Joseph D. Bedle, for defendants in error.

MCGILL, Ch. The plaintiff in error was organized in pursuance of the provisions of the act to "authorize the formation of railroad corporations and regulate the same," approved April 2, 1873, (Revision, 925,) and its supplements, known as the "General Railroad Law," for the purpose of building a railroad about 2,600 feet long, within the corporate limits of Jersey City. On the 10th of December, 1888, it filed a survey of the route and location of its proposed road. That survey provides that it is to commence at a point in the route of the National Docks Railroad south of Montgomery street, and run northerly, several courses, about 1,500 feet, to the lands of the defendants, and then, for more than 1,000 feet, through the defendants' lands, to a point in the route of the New Jersey Junction Railroad Company, thus forming a direct connection between the routes of the National Docks and New Jersey Junction Railroads. The land of the defendants first traversed by this route is an embankment, immediately adjoining, running parallel with, and elevated about 23 feet above, Railroad avenue, one of the public streets of Jersey City. Upon this embankment, for many years, the main line of the defendants' railroad was constructed and operated, but that line now being shifted to the north the embankment is occupied by a side track. Immediately north of this embankment, for two or three hundred feet, is ground raised to the grade of the old embankment by filling up a hollow, which the defendants propose to use, in connection with their old main line embankment, as a car-yard, made necessary by the elevation of their tracks through Jersey City. North of this land is an embankment upon which the defendants' new main line is constructed, and then some partially filled, but unused, meadow. The terminus of the route is at or near the point where the New Jersey Junction Railroad crosses the defendants' right of way from their main line to their freight depots in Harsimus Cove, over which, upon an elevated iron trestle or bridge, its freight tracks are laid. When the New Jersey Junction Railroad, as it is at present constructed, emerges from under the defendants' freight line, it curves to the east, and ascends to the defendants' main line, making a connection with it, although its filed route shows that it was contemplated that the main line should not curve to the east, but continue in a southerly direction. This curved extension to the connection with the defendants' road is in the location of branch No. 7, represented upon the filed route of the New Jersey Junction Railroad, and although, as constructed, it appears to be a continuation of the main line, it is called "Branch Railroad No. 7." At a point nearly opposite the commencement of this curve, or the place of departure of branch No. 7 from the main line of the Junction Railroad, the defendants have cut through the embankment upon which their new main line is constructed, walled the cut, and carried their main line over it upon a bridge. Through this cut, under the bridge, they have laid two tracks. It is in evidence that their purpose in making this cut was to provide an under grade connection through their land with the National Docks Railroad, but that such intention has been abandoned. The plaintiff now proposes to utilize this cut for its road, and to continue it, with suitable walls, southerly, through the defendants' proposed car-yard, to Railroad avenue. As the plaintiff's road must cross that avenue above or below the street's grade, (Revision, p. 930, § 14,) and it appears to be impracticable for it to cross below the grade, it will be necessary for it, after it passes the defendants' main line, to gradually raise the bottom of its cut through the defendants' land, so that at Railroad avenue it maybe the requisite distance above the surface of that street. In that event, to enable the defendants to use their land between their main line and Railroad avenue for a car-yard, on both sides of this cut the grade must be gradually raised from the new main line southerly. The maximum of the change thus required will be at the embankment upon which the old main line was constructed, eight feet and a half above the present grade at that point, and three feet and ten inches above the grade of the defendants' new main line.

By its petition for the appointment of commissioners to assess the compensation and damages to be paid to the defendants for the proposed crossing, the plaintiff has specified the manner in which it intends to cross that part of the defendants' lands which appears to be necessary for railroad purposes. The cut, together with that now existing under the defendants' main line, is to be 524 feet long, walled on both sides with walls constructed of stone resting on solid foundation, 12 feet in width at the bottom and 5 feet in width at the top, with a batter on the inner face of half an inch to a foot. The inner faces of the wall arc to be 30 feet apart, at the level of the rails in the proposed road. These walls are to unite with and continue the walls which support the defendants' main line over the cut now existing under that line, and to gradually rise, upon a grade of eighty-two hundredths of a foot to each 100 feet, until, at Railroad avenue, they shall be 31 feet above the crown of the road-bed of that highway. The walls are to be competent to support half through girder railroad bridges at every point, and the defendants are to have the right to use the walls to support such bridges, and for all other purposes which will not interfere with the proper use of the plaintiff's proposed railroad.

At this point in the statement of facts two inquiries are presented: First, whether in acquiring the crossing over an existing railroad a condemning company may, by its petition, designate the manner of crossing and make compensation for such crossing only, or whether it must condemn the right to cross generally, subject to such restrictions and requirements in the use of the right it may acquire as the court of chancery may reasonably prescribe, making compensation predicated upon anticipated and possible regulation; and, second, whether a crossing which interferes with the present use, or intended use, of railroad lands for railroad purposes, is lawful. The right of one railroad to cross another which is intersected by its route is so plainly essential to its construction for any considerable distance that it has become indisputably established by implication from mere authority to build a railroad between given points, (Morris, etc., R. Co. v. Antral R. Co., 31 N. J. Law, 205; National Ry. Co. v. Easton, etc., R. Co., 36 N. J. Law, 182; New Jersey, etc., R. Co. v. Commissioners, 39 N. J. Law, 28; Railroad Co. v. Drummond, 46 N. J. Law, 644,) and the general railroad law recognizes this right in railroads incorporated under it in terms so unambiguous as to be tantamount to express authority, (Revision, p. 934, § 36; State v. Tunnel Co., 38 N. J. Law, 548.) The right, however, is by implication from necessity, and its exercise must therefore be limited by the necessity of the condemning road. In the condemnation of a crossing over the lands of another railroad which are necessary for railroad purposes, all that is acquired is a right of way. After such condemnation, the place of crossing remains in the common use of both railroads for the exercise of their respective franchises. The manner of crossing is not to be destructive of the ability of the road crossed to fully, fairly, and freely exercise its franchises. National Ry. Co. v. Easton, etc., R. Co., 36 N. J. Law, 181; New Jersey, etc., R. Co. v. Commissioners, 39 N. J. Law, 28; Lehigh Valley R. Co. v. Dover, etc., R. Co., 43 N. J. Law, 528; Railroad Co. v. Drummond, 46 N. J. Law, 644. It is not perceived that there can be tenable or sufficient objection to the designation of the manner of crossing in the petition in condemnation proceedings. It is within the power of one railroad to determine by the location of its route where it will cross another, (National Docks R. Co. v. Central R. Co., 32 N. J. Eq. 755;) and it is impossible to perceive a sufficient reason why it may not also determine, within lawful bounds, how it shall cross the other. When a crossing is sought in a manner specified in its petition, the condemning company will make compensation for a crossing in that single manner, which, if it may thereafter be materially changed, may not be so changed without additional compensation for the damage which the change may occasion. The specifiation upon the record, of the exact method of using the right of way to be acquired, limits the compensation to the damages which may result from such use, and there can be no presumption, as in case of a general condemnation, (Lewis, Em. Dom.§ 565; Van Schoick v. Canal Co., 20 N. J. Law, 249; Ten Eyck v. Canal Co., 18 N. J. Law, 200; Canal Co. v. Lee, 22 N. J. Law, 243; Water-Power Co. v. Chambers, 13 N. J. Eq. 199,) that all damages, both present and prospective, including those occasioned by subsequent changes in the plan of crossing, have been considered and allowed. When the petition prescribes the manner of crossing, the effect upon the road crossed being thereby discernible, it is apparent that the legality of the...