Paterson & State Line Traction Co. v. De Gray

• Decision Date: 20 November 1903
• Parties: PATERSON & STATE LINE TRACTION CO. v. DE GRAY.
• Court: New Jersey Supreme Court

56 A. 250

70 N.J.l. 69

PATERSON & STATE LINE TRACTION CO.

v. DE GRAY.

Supreme Court of New Jersey.

Nov. 20, 1903.

(Syllabus by the Court.) Case Certified from Circuit Court, Passaic County.

Condemnation proceedings by the Paterson & State Line Traction Company against Richard De Gray. Case certified from the circuit court, and questions answered.

Argued June term, 1903, before GUMMERE, C. J., and DIXON, HENDRICKSON, and PITNEY, JJ.

Preston Stevenson, for appellant.

Eugene Em ley, for respondent.

PITNEY, J. Two questions of law arising in this cause are certified by the circuit court, to the end that the opinion of this court may be given thereon, viz.: "(1) To what extent, if at all, are the practice regulations in condemnation proceedings prescribed by section 14 of the act entitled 'An act for the formation of traction companies for the construction and operation of street railways or railroads operated as street railways, and to regulate the same,' approved March 14, 1893 (P. L 1893, p. 302; Gen. St. p. 3235), modified or repealed by chapter 53 of the Laws of 1900, entitled 'An act to regulate the ascertainment and payment of compensation for property condemned or taken for public use,' approved March 20. 1900 (P. L. p. 79)? (2) Is the appeal provided for by section 9 of said act of 1900 applicable to and available in the case of a report of commissioners in condemnation proceedings taken under authority of section 14 of said act of 1893?"

The traction act of 1893, just referred to, authorizes the formation of corporations for purposes requiring the exercise of the power of eminent domain. By section 13 a company thus organized is authorized to take such land or materials as may be necessary for the purposes of its incorporation, upon making compensation to the owner. Section 14 prescribes that, when the company cannot agree with the owner, application is to be made to one of the justices of the Supreme Court, who, after causing notice to be given to the persons interested, is to appoint three freeholders of the county as commissioners to examine and appraise the land or materials required and to assess the damages. The report of the commissioners is to be made in writing, and filed within 10 days in the county clerk's office. Thereafter the commissioners are to meet, in order to hear and consider objections to the report, at a time and place of which public notice is to be given, and "thereupon said commissioners shall have power to alter and amend their report in any respect they may deem necessary, or as equity and justice may require; and after said commissioners shall have filed their certificate that they do not desire to make any alteration or amendment to their said report, the said company shall apply to a justice of the Supreme Court to appoint a time and place when and where be will sit and hear a motion to confirm the report of said commissioners," public notice of which motion is to be given. Objections to such confirmation are to be made in writing, and filed in the county clerk's office; and the said justice, having heard the parties interested in said report and the objections thereto, "may confirm the said report in all things, or refer the same back to said commissioners to be reformed, corrected or amended in such respects as said justice may deem equitable and just; and if the said report of said commissioners be confirmed by said justice, or if, pursuant to the direction of said justice, the same be reformed, corrected or amended as by said commissioners upon filing of said report reformed, corrected or amended as aforesaid, the same shall be taken and considered as confirmed, and remain of record in said clerk's office; and thereupon and on payment or tender of payment of the respective amounts assessed and awarded as herein provided, the said company is hereby empowered to take possession of the lands and easements in said report mentioned required for any of the purposes aforesaid, and to have, hold, use, occupy, possess and enjoy the same for any or all of said purposes." The act makes no other specific provision for a review of the report of commissioners, and confers no right of appeal, unless the review provided for in section 14 can be deemed to be an appeal. The act of 1900, above mentioned, embodies the substance of certain previous acts relating to condemnation proceedings, but contains also sundry provisions not before embodied in any general act. As its title indicates, it merely regulates the ascertainment and payment of compensation to be paid upon the taking of property for public use, and does not confer the right of condemnation. By its first section it is, in substance, enacted that whenever the proper officers of the state, or of any county or of any municipal corporation, or of any other corporation, public or private, having power to take land or other property for public use, shall have determined to acquire land or other property pursuant to authority conferred by law, and for any reason cannot acquire such property by agreement with the owner, the compensation shall be ascertained and paid in the manner directed by this act Then follow provisions requiring the presentation of a petition to one of the justices of the Supreme Court for the appointment of three...