Starego v. Soboloski
| Decision Date | 24 September 1952 |
| Docket Number | No. A--379,A--379 |
| Citation | 91 A.2d 263,21 N.J.Super. 389 |
| Parties | STAREGO v. SOBOLOSKI et al. |
| Court | New Jersey Superior Court — Appellate Division |
Paul C. Kemeny, Perth Amboy, for plaintiff-appellant.
Melko, Goldsmith & Pollack, Perth Amboy, for defendants-respondents, Matthew F. Melko, Perth Amboy, appearing.
Before Judges DAVIDSON, JOSEPH L. SMITH and STANTON.
The opinion of the court was delivered by
DAVIDSON, J.A.D.
Plaintiff appeals from a summary judgment entered for defendants. The facts are not in dispute and briefly show that plaintiff is the owner of a tract of land, 25 feet wide by 100 feet in depth, located on the southerly side of Hall Avenue, in the City of Perth Amboy; that defendant Soboloski is the owner of an adjoining lot on the easterly side of plaintiff's property and defendant Stofega is the owner of a lot which in turn adjoins that of defendant Soboloski on the east.
Defendants originally paid the City of Perth Amboy Water Department for service which subsequently proved inadequate, and in 1944 they complained of insufficient pressure, as a result of which the water department installed a new sub-main and service to the property of each defendant. Defendants were not billed for the work, as the department felt responsible to provide adequate service, and the water lines were laid by employees of the City of Perth Amboy Water Department under the direction of its superintendent, who determined the location thereof.
The department connected a 1 1/4-inch sub-main to the 4-inch water main in Hall Avenue, which sub-main was laid underground in the area between the sidewalk and curb, being 1 foot and 4 inches from the face of the curb, and to which sub-main 1-inch service pipes were connected with defendants' properties. The 1 1/4-inch sub-main connects with a 4-inch main in Hall Avenue, and from the center line thereof runs in a general southerly direction 19 feet and 4 inches to the aforementioned point inside the curb line, necessarily crossing in front of plaintiff's property for a distance of 23 feet and 6 inches. On these facts plaintiff charged defendants with a continuing trespass.
Defendants' only actions with respect to the entire operation were their original applications to the city water department for service and subsequent complaints of insufficient pressure, which led to the new installation, the entire scheme of the water system being in the hands of the municipal department and all work and service being done by said department wholly outside the control of individual property owners and users.
Plaintiff does not assert that either the sub-main or water service line runs through any portion of his land as described in his title deed, but he contends that he owns the fee simple to the middle of the street and his rights, therefore, have been invaded and infringed.
There seems to be little doubt but that a person who owns lands across which a highway has been constructed owns the fee simple of the highway, subject only to the public easement, and that the public easement extends not only to the use of the surface of the land for purposes of passage, but also to the portion which lies beneath the surface wherever it is needed for water pipes, sewer pipes, gas pipes or any other legitimate state use. Winter v. Peterson, 24 N.J.L. 524 (Sup.Ct.1854); Bayonne v. Borough of North Arlington, 77 N.J.Eq. 166, 75 A. 558 (Ch.1910), reversed on other grounds in 78 N.J.Eq. 283, 79 A. 357 (E. & A.1911).
R.S. 40:62--65, N.J.S.A., provides that:
'Every municipality providing for the supply of water * * * may lay and maintain pipes and mains in and under the streets, highways, alleys and public places of such municipality and through private property therein; * * *.'
The words 'street' and 'highway' are often used interchangeably and denote the same meaning. The sidewalk is part of the highway and therefore within any rule...
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Yanhko v. Fane
...neither of which defendants are entitled to interfere. Saco v. Hall, 1 N.J. 377, 382, 63 A.2d 887 (1949); Starego v. Soboloski, 21 N.J.Super. 389, 392--393, 91 A.2d 263 (1952), aff'd 11 N.J. 29, 93 A.2d 169 (1952). In legal contemplation, the easement of public passage renders the sidewalk ......
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...bank owning title to land to construct on sidewalk a "curbside teller" to serve those in automobiles); cf. Starego v. Soboloski, 21 N.J.Super. 389, 91 A.2d 263 (App.Div.1952), aff'd 11 N.J. 29, 93 A.2d 169 (1952) (municipality may grant to third parties right to place objects such as waterm......
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New Jersey Highway Authority v. Johnson
...382, 63 A.2d 887 (1949); Faulks v. Borough of Allenhurst, 115 N.J.L. 456, 180 A. 877 (E. & A.1935). See, also, Starego v. Soboloski, 21 N.J.Super. 389, 91 A.2d 263 (App.Div.1952), affirmed, 11 N.J. 29, 93 A.2d 169 (1952), certiorari denied, 345 U.S. 925, 73 S.Ct. 784, 97 L.Ed. 1356 (1952); ......
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Chiarello v. Guerin Special Motor Freight, L--8231
...to the reasonable, common and equal use of the people, in vehicles or on foot. We quote from the case of Starego v. Soboloski, 21 N.J.Super. 389, 392, 91 A.2d 263, 264 (App.Div.1952): 'The words 'street' and 'highway' are often used interchangeably and denote the same meaning. The sidewalk ......