State v. Mayor

• Decision Date: 27 March 1894
• Citation: 56 N.J.L. 474,28 A. 1039
• Parties: STATE (AVIS, Prosecutor) v. MAYOR, ETC., OF VINELAND.
• Court: New Jersey Supreme Court

28 A. 1039

56 N.J.L. 474

STATE (AVIS, Prosecutor)

v. MAYOR, ETC., OF VINELAND.

Supreme Court of New Jersey.

March 27, 1894.

(Syllabus by the Court.)

Certiorari by the state on the relation of A. B. Avis, prosecutor, against the mayor and common council of the borough of Vineland, to review an ordinance. Ordinance set aside.

Argued February term, 1894, before DIXON and ABBETT, JJ.

Howard Carroll and Chas. K, Landis, Jr., for prosecutor.

Royal P. Tuller, for defendant.

ABBETT, J. The writ of certiorari. In this case removed into this court an ordinance passed by the mayor and council of the borough of Vineland, May 9, 1893, entitled "An ordinance for the removal of obstructions from Landis avenue, and to declare what are nuisances therein, between Eighth street and East avenue, within the borough of Vineland." This ordinance declared that certain trees on the northern and southern border of Landis avenue, between Eighth street and East avenue, and the grassy portions of said avenue on each side, were obstructions and nuisances in said avenue, and the road committee was directed to remove the same May 18, 1893. The borough claims the right to pass this ordinance and remove the trees and grass plots in question under paragraph 2, subd. 1, of section 12 of "An act for the formation of borough governments," approved April 7, 1878. Laws 1878, p. 407 (Supp. Revision, p. 46, § 14, par. 1). This paragraph gives the mayor and council of said borough power to pass, enforce, alter, or repeal ordinances to take effect within the limits of said borough for the following purposes, to wit: "(1) To declare what shall be considered nuisances in the streets, roads, lots, and places in said borough, and to prevent and remove all obstructions, incumbrances and nuisances in and upon any street, road, lot, sidewalk, inclosure or other place in said borough." This language does not authorize municipal authorities to declare anything to be a nuisance which cannot be detrimental to the health of the city, or dangerous to its citizens, or a public inconvenience. State v. Mayor, etc., of Jersey City, 29 N.J.Law, 170, 175. An ordinance passed without notice to the prosecutor, directing a committee to remove certain objects upon lands which had been occupied by the prosecutor for 25 years, because they were encroachments upon a street, held void. The power to prevent and remove all encroachments in or upon any street is only a police power, and does not extend to cases of a doubtful or uncertain nature, and which require to be first lawfully determined. Dawes v. Mayor, etc. of Hightstown, 45 N.J.Law, 127, 129. See, also, Railway Co. v. Hunt, 50 N.J.Law, 308, 314, 316, 12 Atl. 697. The power to declare what is to be considered nuisances in streets, and to remove encroachments and nuisances from highways, is a police power, ministerial in its nature, and designed to relieve the public from such obstructions in streets as are apparent or readily ascertainable, without the necessity of adjudication. The power is capable of exercise only to the extent that the right is clear or reasonably known, and not so as to invade rights which, from their doubtful or uncertain nature, require a lawful determination. Dawes v. Mayor, etc., of Hightstown, 45 N.J.Law, 501, 503, 504. To say to a man that he shall not use his property as he pleases, under certain conditions, is to deprive him pro tanto of the enjoyment of such property. To find conclusively against him that a state of facts exists, with respect to the use of his property, or the pursuit of his business, which subjects him to the condemnation of the law, is to affect his rights in a vital point. The right to abate nuisances, whether we regard it as existing in the municipalities or in the community or in the land of the individual, is a common-law right, and is derived in every instance of its exercise from the same source,—that of necessity; but the necessity must be present to justify the exercise of the right, and, whether present or not, must, in ordinary cases, be submitted to a jury under the guidance of a court. The finding of a municipal body can have no effect whatever for any purpose upon the ultimate disposition of a matter of this kind. It is for the courts. Hutton v. City of Camden, 39 N.J.Law, 122, 130, 131. A thrifty tree in a public highway, the fee of the soil of which is in the abutting landowner, belongs to the abutting landowner (unless it has been planted by the public authorities), and he may have trespass against any person who cuts down any such trees growing on the side of the road, and left there for shade or ornament; for the freehold remains, subject only to the easement or right of passage in the public. Nothing is more common everywhere in our villages and agricultural districts than for the owners and occupiers of the soil to have fruit, shade, and ornamental trees along the line of the public roads, sometimes in the line...