Nicoll v. N.Y. & N. J. Tel. Co.

Decision Date06 March 1899
PartiesNICOLL et al. v. NEW YORK & N. J. TEL. CO.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to supreme court.

Certiorari by Benjamin Nicoll and others against the New York & New Jersey Telephone Company. From an order dismissing the writ (40 Atl. 627), petitioners bring error. Affirmed.

S. H. Little, for plaintiffs in error.

John B. Vreeland and George T. Werts, for defendant in error.

DIXON, J. This writ of error brings up a judgment of the supreme court dismissing a writ of certiorari sued out by the plaintiffs in error on the following state of facts: The plaintiffs in error are owners of lands in Morristown, fronting on Sussex avenue, and having for their southerly boundary the middle of the avenue. In 1896 the defendant in error commenced proceedings, under the telegraph and telephone companies act of June 20, 1890 (3 Gen. St. p. 3460), to acquire a right to place poles and wires for a telephone line on the plaintiffs' land, in said avenue. According to the order made in said proceedings, the commissioners' appraisement of damages was to be filed, and in fact was filed, by May 1, 1897; and on May 4, 1897, the defendant filed with the circuit court of Morris county a petition of appeal from said appraisement, but failed to serve notice of appeal upon the plaintiffs until August 27, 1897. Notwithstanding this failure, the Chief Justice, sitting in said circuit, made the order for trial, etc., prescribed by the third section of the eminent domain act of March 9, 1893 (2 Gen. St. p. 1386), but allowed a certiorari to test the legality of the order. The legality of the order is denied by the plaintiffs, because written notice of the appeal was not served upon them within 10 days after the filing of the petition of appeal, as directed by said act of 1893; but the certiorari was dismissed by the supreme court, upon the ground that the proceedings were not governed by that act, because the acquisition of the right sought by the defendant was not "the taking of property for public use," to which alone the act of 1893 is applicable.

The language of the act of 1893 is evidently borrowed from the constitutional injunction that "private property shall not be taken for public use without just compensation," and clearly expresses a purpose to regulate the procedure for all cases within the scope of that injunction, since it enacts that "all acts or provisions inconsistent with the provisions of this act shall be and are hereby repealed, and the practice prescribed by this act shall supersede the existing practice in all condemnation cases before commissioners or on appeal, so far as the provisions of this act shall extend." We must therefore consider whether the acquisition by a telephone company of a right to erect poles and place wires and other fixtures for telephonic purposes along a public street, wherein the fee of the land belongs to private persons, without the consent of such persons, is the taking of private property. If the land were not subject to the easement of a public street, the matter would not be debatable; but it is equally clear that, whenever the property of the owner of the fee in a highway is subjected by law to an additional servitude, it is taken, within the meaning of the constitution. The contention therefore must be over the question whether the right thus to be acquired would be an additional servitude upon the fee, or is embraced within the public easement, and hence grantable by the public for public use, without regard to the owner of the fee. The public easement, as interpreted in this state, is primarily a right of passage over the surface of the highway, and of so using and occupying the land within it as to facilitate such passage. In this primary right are included the grading, paving, cleaning, and lighting of the highway, the construction and maintenance of street railways, with the apparatus proper for their use, and the maintenance of appliances conducive to the protection and convenience of travelers while using the way. Secondarily, the easement covers uses which, though their relation to the right of passage is remote or even fanciful, are so generally advantageous to the owners of the fee—the owners of abutting property— that, rather by common consent and custom than by logical deduction from the primary design, they are now recognized as legitimate. Such are the construction and maintenance of sewers, water pipes, and gas pipes for the convenience of persons occupying neighboring lands. State v. Laverack, 34 N. J. Law, 201.

The argument to support the proposition that the right to construct and maintain a telephone line for common public use is within this easement is that the structures required for the exercise of the right are mere adaptations of the road to the passage of the electric current, which thus travels along the highway. But the...

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18 cases
  • Port of New York Authority v. Hackensack Water Co.
    • United States
    • New Jersey Supreme Court
    • 6 d3 Novembro d3 1963
    ...public right of way as a use ancillary to the principal and primary use of the way by the public. Nicoll v. New York & New Jersey Telephone Co., 62 N.J.L. 733, 735, 42 A. 583 (E. & A. 1899); Laurel Garden Corp. v. New Jersey Bell Telephone Co., 109 N.J.L. 171, 160 A. 549 (E. & A. 1932). It ......
  • St. Louis, Iron Mountain & Southern Railway Company v. Cape Girardeau Bell Telephone Company
    • United States
    • Missouri Court of Appeals
    • 15 d2 Dezembro d2 1908
    ... ... 348; Telegraph Co. v. Barnett, 107 Ill. 507; ... Cable Co. v. Eaton, 170 Ill. 513; Nicoll v ... Telegraph Co., 42 A. 583; Telegraph Co. v ... McKenzie, 74 Md. 36; Kruger v ... Authorities to this effect are numerous and sound in ... principle. [ Western Union Tel. Co. v. Rich, 19 Kan ... 517; M. & O. Railroad Co. v. Postal Tel. Co., 41 ... L.R.A. (Tenn.) ... ...
  • Bronson v. Albion Telephone Company
    • United States
    • Nebraska Supreme Court
    • 8 d4 Janeiro d4 1903
    ... ... 513, 49 N.E. 365; Halsey v. Rapid Transit Street R ... Co. 47 N.J.Eq. 380, 20 A. 859; Nicoll v. New York & New Jersey Telegraph Co., [*]42 A. 583; Western ... Union Telegraph Co. v. Williams, ... ...
  • Hynek v. Mci World Communications, Inc.
    • United States
    • U.S. District Court — Northern District of Indiana
    • 20 d1 Maio d1 2002
    ...St. Louis, Iron Mountain & S. Ry. Co. v. Cape Girardeau Bell Tel. Co., 134 Mo.App. 406, 114 S.W. 586 (1908); Nicoll v. New York & N.J. Tel. Co., 62 N.J.L. 733, 42 A. 583 (1899); Phillips v. Postal Tel. Cable Co., 130 N.C. 513, 41 S.E. 1022 (1902), rev'd on other grounds, 131 N.C. 225, 42 S.......
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