Delaware River Bridge Railroad and Bridge Company v. The Township Committee of The Township of Haddon

• Decision Date: 31 January 1927
• Docket Number: No. 221.,221.
• Citation: Delaware River Bridge Railroad and Bridge Company v. The Township Committee of The Township of Haddon, 135 A. 801, 5 N.J.Misc. 210 (N.J. 1927)
• Court: New Jersey Supreme Court
• Parties: DELAWARE RIVER BRIDGE RAILROAD AND BRIDGE COMPANY, PROSECUTOR, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HADDON ET AL., RESPONDENTS

135 A. 801

DELAWARE RIVER BRIDGE R. & BRIDGE CO.

v. TOWNSHIP COMMITTEE OF HADDON TP. et al.

No. 221.

Supreme Court of New Jersey.

Jan. 31, 1927.

Certiorari by the Delaware River Bridge Railroad & Bridge Company against the Township Committee of the Township of Haddon and others to set aside assessments for a street improvement. Assessments set aside.

Argued January term, 1927, before BLACK and CAMPBELL, JJ.

Bourgeois & Coulomb, of Atlantic City, for prosecutor.

Walter S. Keown, of Camden, for respondents.

PER CURIAM. The prosecutor is a duly incorporated railroad company operating a railroad from a point in the, vicinity of Haddonfield to Delair, in the county of Camden. At a point where Maple avenue, a public highway, crosses the right of way of the railroad company, in the township of Haddon, the railroad tracks are laid in a cut, and the avenue is carried over the right of way by means of a bridge, which is approximately 32 feet wide and 90 feet in length. The bridge extends east and west and the right of way at that point runs north and south. At the west end of the bridge there is a 26-foot strip of land and on the easterly end there is one 23 feet wide. Both strips are on a level with Maple avenue and form the shoulders of the cut through which the railroad tracks are laid, and are used by the company for the purpose of protecting the slopes from erosion by rain, melting snows, and the like, and to likewise protect adjoining properties to the east and west. There are no buildings or structures of any kind on such strips, and so far as the prosecutor is concerned, they are a part of its right of way and are so considered and reported to the state board of taxation and are assessed by that board as a part of the right of way and main stem of the railroad as required by statute.

In improving Maple avenue by paving, guttering, and curbing, the respondent has caused these two strips of land to be assessed for benefits. The prosecutor, contending that its property is not subject to assessment for such purposes, sued out this writ, and seeks to have the assessments set aside and vacated. Under N. Y. Bay R. R. Co. v. Newark, 77 N. J. Law, 270, 72 A. 455, and N. Y. Bay R. R. Co. v. Newark, 82 N. J. Law, 591, 83 A. 962, we think such contention of the prosecutor is sound and the lands in question were not subject to the assessments.

But the respondents contend that if that be so the assessments should not be set aside and that the prosecutor is...