State v. City of Bayonne

• Decision Date: 30 June 1890
• Citation: 52 N.J.L. 503,20 A. 69
• Parties: STATE (CENTRAL R. CO. OF NEW JERSEY, Prosecutor) v. CITY OF BAYONNE.
• Court: New Jersey Supreme Court

20 A. 69

52 N.J.L. 503

STATE (CENTRAL R. CO. OF NEW JERSEY, Prosecutor)

v. CITY OF BAYONNE.

Supreme Court of New Jersey.

June 30, 1890.

(Syllabus by the Court.)

Certiorari.

The writ of certiorari in this case brings up the proceedings of the mayor and council of the city of Bayonne for the opening of East Twenty-Second street between the easterly side of Avenue E and the westerly side of Avenue I, and the assessments therefor, and the ordinance authorizing the same, with all maps, reports, resolutions, records, and notices connected therewith.

Argued at February term, 1890, before KNAPP and MAGIE, JJ.

Mr. Man, for prosecutor. Mr. Fuller, for the city.

MAGIE, J. Two questions are raised by the reasons assigned for reversal by prosecutor. The first question relates to the sufficiency of the notice of the assessment. It will be solved by determining what notice was required, and comparing the notice given with that required. By section 58 of the charter of Bayonne, approved March 22, 1872, (Laws 1872, p. 686,) as amended by a supplement thereto approved March 28, 1873, (Laws 1873, p. 465,) such notice is required to contain "a general description of the improvement intended, of the land to be taken, and of the land to be assessed therefor, which description may be by reference to any map to which the said owner may be allowed access." By the "Act relating to notices of filing reports of assessments," approved April 13, 1876, (Revision, 711; Supp. Revision, 543,) it is enacted that when notices of filing reports of assessments of benefits, and of hearing objections thereto, are required to be given," said notices shall clearly state the character of the work and improvement for which such assessments have been made, and a description of the streets or avenues, or particular sections thereof, which are included in said assessment. "The last-named act was general, and was therefore ingrafted on the charter of Bayonne so as to form part of the law governing notices of assessments for benefits in that city. By these provisions, such a notice was required to contain a description (1) of the improvement for which assessments were made, and its character; (2) of the lands taken therefor, which would be satisfied by reference to a map to which the owner had access; and (3) of the land to be assessed therefor, by the streets, avenues, or particular sections thereof included in that assessment. The notice appearing in this record contains a statement and description of the improvement, and its character, in entire compliance with the requirements of these laws. It also shows that the lands taken for the opening of the street are designated on a map accompanying the commissioners' report, and filed in the office of the city clerk. This office must be presumed to be a public office, and a map filed therein may therefore be considered to be accessible to the owners interested. In this respect the notice complied with the requirements of the laws applicable thereto. Lastly, certain streets, avenues, and sections thereof, specified by measurements along their sides from given points, are by the notice declared to be included in the said report. The notice would have been more explicit if it had used the language of the act of 1876, and had delared that the described streets, avenues, and sections were included in the assessment for benefits. But J deem the language used to be a substantial equivalent for such a statement. The description was obviously not that of lands taken, but of lands otherwise included in the report, and no lands could be so included except those assessed for benefits. The description by the distances on the specified streets and avenues seems to entirely comply with the provisions of the act. The objection to the notice cannot, therefore, avail prosecutor.

The other question presented by prosecutor's reasons arises upon the following facts: Prosecutor acquired, by deeds of conveyance, lands within the lines of East Twenty-Second street, formerly Twenty-Seventh street, as opened by the ordinance in question. Part of prosecutor's lands lies within the right of way, of 100 feet in width, occupied and used by the railroad of prosecutor's. Another part of said land lies within the grounds connected with prosecutor's station at Centreville. The ordinance enacted that the street should be opened over these lands, and other lands, and that its cost should be assessed and paid as directed by the charter. The commissioners to whom the matter was referred made no award to prosecutor either for lands taken, or damages done by the opening. Their report declares that the lands taken by the opening are colored light brown on the accompanying map, and thereon designated with the names of the owners, and an appropriate award to each. Prosecutor's lands are not colored light brown, but yellow, and are not included in the designation of lands for which an award is made. No explanation of the omission appears in the report. A memorandum on the map indicates that lands colored yellow are "part of street dedicated." On the part of the city, proof was made that the street in question had been laid down and designated on a map made by the map and grade commissioners of said city, and filed in the office of the clerk. Two conveyances of lands executed by prosecutor were put in evidence, each of which recognized said map, and one of which conveyed lands described therein as abutting upon Twenty-Seventh street, which is the same street now called" East Twenty-Seventh Street." These conveyances were made by the receiver of the company under the direction of the chancellor, and were joined in by prosecutor, under a relaxation of an injunction previously issued against it, to and in the purposes of the receivership. Prosecutor's contention is that the proceedings before us are defective because no award was made to it for the value of its lands included in the street, or for damages resulting from opening the street over them. On the part of the city, it is insisted that no award ought to have been made, because the lands in question had been in fact dedicated to public use as a highway.

If prosecutor attacked the proceedings solely as owner of lands lying within the line of the street, it may admit of doubt whether a certiorari will afford an appropriate remedy for the matter complained of, viz., the silence of the report respecting such lands, and the omission to make an award therefor. But prosecutor also owns lands fronting on that part of the street which was designated on the map as dedicated, and upon the lands an assessment for benefits for the opening has been imposed. In making that assessment the commissioners must have adjudged that the street in question had been there dedicated to public use,...