State v. Hudson County Bd. of Chosen Freeholders

• Decision Date: 04 November 1892
• Citation: 25 A. 322,55 N.J.L. 88
• Parties: STATE (MANGLES et al., Prosecutors) v. HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS et al. STATE (GAUTIER et al., Prosecutors) v. SAME.
• Court: New Jersey Supreme Court

25 A. 322

55 N.J.L. 88

STATE (MANGLES et al., Prosecutors)

v. HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS et al.

STATE (GAUTIER et al., Prosecutors)

v. SAME.

Supreme Court of New Jersey.

Nov. 4, 1892.

(Syllabus by the Court.)

Certiorari by the state on the prosecution of Maria Mangles and others against the Hudson county board of chosen freeholders and others to review the report of commissioners appointed to make a wards for lands taken in opening a public road. Certiorari by the state on the prosecution of Joseph H. Gautier and others against the same defendants as above. Proceedings of commissioners affirmed.

Argued June term, 1892, before Werts and Dixon, JJ.

Mr. Van Buskirk and Collins & Corbin, for prosecutors.

J. A. McGrath, W. D. Edwards, and A. O. Garretson, for defendants.

DIXON, J. The subject for consideration is the report of commissioners appointed to make awards for lands taken in the opening of section 2 of a public road laid out in the county of Hudson, under "An act to authorize the boards of chosen free-holders in the several counties of this state to lay out, open, construct, improve, and maintain a public road therein," approved April 7, 1888, (P. L. 1888, p. 397.) The report was tiled June 1, 1892, and, in the case of each of the prosecutors, states that only a part of his land was required, and ascertains the value of that part, the amount of damages which the owner will sustain by reason of such taking, and the amount of benefits that will result from the road to him as owner of his remaining lands. Then, deducting the amount of the benefits from the sum of the value and damages, the report awards the difference to each owner as his compensation under the law. This feature of the report presents the first object of attack by the prosecutors. They insist that their constitutional right to just compensation has been withheld by the deduction for benefits. On the other hand, the defendants claim that the prosecutors have no constitutional right at all, because, while the constitution provides that "private property shall not be taken for public use without just compensation," it adds, "hut land may be taken for public highways, as heretofore, until the legislature shall direct compensation to he made." This position of the defendants will first be examined. In the exceptive clause of this constitutional provision, no words are more worthy of consideration than these, "as heretofore." In withholding from the owners of land taken for highways that compensation which natural justice requires should ordinarily be made for private property needed for public use, the framers of our organic law had regard to preceding practices in this state which had been adhered to through several generations. One of these was that of the original proprietors of New Jersey, of including in every grant of land a specific allowance for the opening of highways, which in East Jersey was 5 per cent. In re Highway, 22 N. J. Law, 293. The other was a practice enjoined by the legislature from early colonial times, and persisted in uniformly until after the adoption of our constitution, in 1844,—that of limiting the width of highways to four rods. See Acts 1716, (1 Nevill, c. 23, § 3;) Acts 1774, (Allin. Laws, c. 589, § 3;) Acts 1799, (Paterson, p. 387, § 1;) Acts 1818, (Elmer's Dig. p. 472, §1;) and Revision 1846, (Nixon, Dig. p. 701, § 1.) These practices naturally accompanied each other, and together justified, in large measure at least, the exception which was made. It it this legislative limitation, I think, which is chiefly pointed at by the words "as heretofore," and, if it be transgressed, the general right to compensation must be enforced. Said Chief Justice Green in 22 N. J. Law. 304: "While there would be manifest impropriety in disturbing, without legislative authority, the practice of taking land for highways'as heretofore,' sanctioned, as it is, by the constitution, there would be a still more obvious impropriety in giving greater latitude to the practice. * * * It is the duty of the court to maintain the law as it stood at the adoption of the constitution, but not to extend its operation." The statute on which the present proceedings are based authorizes a road 100 feet wide, and this is admitted to be the width of the highway now projected. The prosecutors, therefore, have a constitutional title to just compensation.

What is meant by the constitutional term "just compensation" is a matter which has received much judicial consideration, and, when it was to be awarded for part of a tract of land taken for a public highway, great diversity of opinion has been entertained concerning it. Whether the compensation was to equal only the value of the land taken, or was to include the damage done to the residue, and whether the general or special or particular benefit accruing to the residue from the public use of the part taken was to be considered in diminution of the value or damages or both, are questions about which the variant discussions have centered. It would be useless to refer to the numerous cases which are cited in the text-books, and it must suffice to state our conclusions on the point now involved. The sixth section of the statute directs the commissioners "to make a just and equitable estimate and appraisement of the compensation and damages each owner of the real estate and land to be taken will sustain by reason of such taking, considering in such appraisal the condition in which each owner's parcel will be left after taking so much thereof as will be necessary for said opening, and the benefits that will result from such road to the owner or owners of such land and real estate."

The claim of the prosecutors is that the constitution does not permit, and this statute does not authorize, the deduction of benefits. Just compensation for taking part of one entire tract of land for public use cannot, we think, be ascertained, without considering all the proximate effects of the taking. These are the withdrawal of the part taken from the dominion of the former owner, the damage done to the residue by the separation, and the benefit Immediately accruing to the residue from the devotion of the part taken to a certain public use. Just compensation is ascertained by combining the pecuniary value of all these facts; if any be excluded, what is given is more or less than is just. The value of the land taken is no more essential to just compensation than is satisfaction for the damage done to the residue, nor is it...