State Highway Comm'n v. City of Elizabeth

Decision Date01 February 1928
PartiesSTATE HIGHWAY COMMISSION v. CITY OF ELIZABETH.
CourtNew Jersey Court of Chancery

Suit by the State Highway Commission, acting for and in the name of the State, against the City of Elizabeth. On order to show cause. Order advised restraining defendant in accordance with the prayer of the bill.

Edward L. Katzenbach, Atty. Gen., and Fred W. De Voe, of New Brunswick, for complainant.

Edward Nugent, of Elizabeth, for defendant.

BERRY, Vice Chancellor. The complainant seeks to enjoin the defendant from interfering with the building and construction of state highway route No. 25 of the state highway system through the city of Elizabeth, and from interfering with that commission's entry upon certain lands of the city which the commission desires to take for the purposes of said highway. The matter comes before me on the return of an order to show cause issued by the Chancellor.

State highway route No. 25 extends from Jersey City to Camden by way of Elizabeth, but the State Highway Act (chapter 319, P. L. 1927, p. 712) does not specify the course of the route through the city; that matter being left to the discretion of the commission itself. The commission has chosen what is known as the "Spring street route," and this route is opposed by the city. For the purpose of constructing this route through the city of Elizabeth on the course selected, it is necessary for the state to acquire certain lands located in and owned in fee by the city, consisting of two plots designated as plots A and B, and consisting of 20,000 square feet and 11,755 square feet respectively. The state highway commission has offered the city the sum of $20,400 for said lands, which offer has been refused. Upon such refusal, John J. Stanley, supervisor of maintenance in the employ of the state highway commission, and by direction of that commission, entered upon the lands in question with a force of men, and took possession thereof, and began the work of construction of said highway at that point, whereupon he was arrested by a city policeman on the charge of destroying city property, and the work so begun was stopped under threat of further arrests. This bill was immediately thereafter filed.

It is claimed by the defendant that no formal offer or tender of compensation was made by the commission; but that fact, if it be a fact, is immaterial, in view of the case of Goodavage v. State Highway Commission, 96 N. J. Eq. 424, 125 A. 919. It is quite apparent, however, that further negotiations with the city would have been useless, and that the commission, under the circumstances, was justified in concluding that an agreement with the city was impossible.

The only question involved here is whether or not lands of a municipal corporation used for public purposes are subject to condemnation by the state highway commission for state highway purposes to the same extent as lands owned by private individuals or corporations. The question is apparently an open one in this state. The only reported case in which the question has been noticed, and to which my attention has been called, is that of Everett W. Cox Co. v. State Highway Commission, 133 A. 419, and there the Supreme Court refused to pass on the question, as it had not been raised by the municipality concerned.

The state highway commission undoubtedly has power to take private property for public use. The general power to condemn was given in the original State Highway Act (chapter 15, P. L. 1917). See, also, section 111 (e), c. 319, P. L. 1927. And such property may be taken and occupied by the commission without first instituting proceedings to condemn. Haycock v. Jannarone, 99 N. J. Law, 183, 122 A. 805; and even before any negotiations for the purchase or acquisition of such lands are had with the owner. Goodavage v. State Highway Commission, supra. It is the duty of the commission to condemn in order that proper compensation may be fixed and paid to the owner, but this duty is a ministerial one, for the performance of which mandamus will lie at the suit of the property owner. Haycock v. Jannarone, and Goodavage v. State Highway Commission, supra.

On behalf of the defendant, it is contended that the lands owned by a municipality and already appropriated by it to public use cannot be taken by the state under its power of eminent domain for some other public use, unless the authority therefor appears by express terms in legislative enactment or by necessary implication, and that such power is not expressly conferred upon the state highway commission by the act creating it, nor is it necessarily implied.

As a general rule of law, "it is well established that property previously devoted to a public use may, by the exercise of the power of eminent domain, be taken for a different public use whenever the interests of the public so require." 37 L. R. A. (N. S.) 101, note.

"The chief difficulty arises when authority to condemn property for any purpose is given in general terms, as is usually the case in these latter years. In such case the presumption is against the right to take property which is already devoted to public use. This presumption may be overcome by showing a reasonable necessity for the property desired as compared with its necessity and importance to the use to which it is already devoted. * * * As to the degree of necessity which must exist, * * * the better opinion is that it must be a reasonable one. Whether any general rule can be laid down as to what will constitute a reasonable necessity, may be doubted. But we should say that there was a reasonable necessity for the taking where the public interests would be better subserved thereby, or where the advantages to the condemnor will largely exceed the disadvantages to the condemnee." Lewis, Eminent Domain, p. 794, § 440.

In this connection, it should be borne in mind that the state highway system is "for the benefit of all the citizens, not merely in or for the benefit of any particular locality or the citizens thereof." Curtis & Hill Gravel & Sand Co. v. State Highway Commission, 91 N. J. Eq. 421, 111 A. 16.

In this state the right to take property already devoted to public use must be given in express terms or by necessary implication. New Jersey Southern B. Co. v. Long Branch, 39 N. J. Law, 28; State v. Montclair Railroad Co., 35 N. J. Law, 328; Van Reipen v. Jersey City, 58 N. J. Law, 262, 33 A. 740; Plainfield Water Company v. Plainfield, 84 N. J. Law, 634, 87 A. 448. But there is no doubt that the right may be granted by the state, and that fact is not here questioned; but the state cannot grant what it has not, and to concede the power to confer the right on its creatures is to acknowledge the right to the state itself. But the power of eminent domain lies dormant in the state until legislative action is had. Cooley's Constitutional Limitations (6th Ed.) p. 648.

"In the constituted government of this state, the right of exercising it has been confided to the Legislature, restricted by only two conditions; one, that compensation shall be made to the owner of property taken; the other, that the use for which property may be taken shall be a public use. In other respects it is without limit. Whether the purpose to be subserved be necessary or wise is for the Legislature alone." National Docks R. R. Co. v. Central Railroad Co., 32 N. J. Eq. 755, 763.

Prior to 1844 there was no constitutional provision requiring the payment of damages to a landowner for land taken for public highways. Haycock v. Jannarone, supra. But the power of eminent domain was always inherent in the state; it was not conferred, but limited, by the Constitution. 3 Dillon, Municipal Corporations (5th Ed.) § 1024. It is an inseparable attribute of sovereignty, but it may be delegated to a state agency.

The defendant is a municipal corporation, and such corporations are simply governmental agencies of the state, adopted for reasons of convenience in order to deal with local affairs and subject to legislative control without limitation, save such as the Constitution imposes. Van Cleve v. Passaic Valley Sewerage Commissioners, 71 N. J. Law, 183, at page 224, 58 A. 571; Millburn v. South Orange, 55 N. J. Law, 254-263, 26 A. 75; Hunter v. Pittsburgh, 207 U. S. 161, 179, 28 S. Ct. 40, 52 L. Ed. 151, 159; City of Trenton v. New Jersey, 262 U. S. 186, 43 S. Ct. 534, 67 L. Ed. 937, 29 A. L. R. 1471.

"Municipalities are the creatures of the state, and the powers given to them are always subject to be abridged or repealed by the sovereign who conferred them." New Jersey Bridge & Tunnel Commission v. Jersey City, 93 N. J. Eq. 550, 118 A. 264. The state is the supreme and sovereign power. "It acknowledges no superior upon...

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