Ricker v. Clerk of Common Pleas of Morris County

• Decision Date: 10 November 1913
• Citation: 88 A. 817,85 N.J.L. 66
• Parties: RICKER v. CLERK OF COMMON PLEAS OF MORRIS COUNTY et al.
• Court: New Jersey Supreme Court

88 A. 817

85 N.J.L. 66

RICKER

v. CLERK OF COMMON PLEAS OF MORRIS COUNTY et al.

Supreme Court of New Jersey.

Nov. 10, 1913.

(Syllabus by the Court.)

Certiorari by Carmen Richer against the Clerk of the Common Pleas of Morris County and others, to review proceedings for the vacating of roads. Proceedings set aside.

Argued before SWAYZE, BERGEN, and VOORHEES, JJ.

Elmer King, of Morristown (King & Vogt, of Morristown, on the brief), for prosecutors.

Ralph E. Lum, of Newark (Lum, Tamblyn & Colyer, of Newark, on the brief), for defendants.

SWAYZE, J. Pending the proceedings to review the resolution just set aside in case No. 272 of the June term, other proceedings were taken to vacate a portion of the same road under the act of 1893 (4 Comp. St. 1910, p. 4464. pl. 78g). This act is declared by the preamble in so many words to be a remedial act, and the mischief sought to be remedied is set forth at length. The preamble recites that by reason of the opening and grading of streets and avenues in new towns and colonies, parts of old, laid-out, roads running through the wild lands thereof have become useless and practically abandoned; the said new streets and avenues affording better access to the same points. Obviously the act was not meant to apply to a case of an old country road, in a remote and old-settled district, where there have been no new towns and colonies, and no streets and avenues affording better access. In view of the expressed purpose of the act, we think the case is one where general words are to be restricted in their meaning. The act is unusual in its provisions. It authorizes the vacation of a part of any public road upon an application to the common pleas by 10 freeholders (who may, so far as the act says, be the very persons whose land is burdened with the road), with the consent in writing of the owners of the land and of the township committee. No notice, public or otherwise, to those interested in the continuance of the road, is required. No power is conferred upon the common pleas to hear any opposition, or to take any action except to cause the papers to be filed. The whole power to vacate a portion of a highway, which may in effect destroy the value of the whole by vacating an essential part, is put in the hands of the parties interested and of the township committee. Such a power ought, to say the least, to be carefully guarded. We think it surely must be limited to the precise class of cases which the Legislature had in...