State v. National Docks & N. J. Junction Connecting R. Co.

• Decision Date: 06 August 1894
• Citation: 30 A. 183,57 n.J.l. 86
• Parties: STATE (PENNSYLVANIA R. CO. et al., Prosecutors) v. NATIONAL DOCKS & N. J. JUNCTION CONNECTING R. CO.
• Court: New Jersey Supreme Court

30 A. 183

57 n.J.l. 86

STATE (PENNSYLVANIA R. CO. et al., Prosecutors)

v. NATIONAL DOCKS & N. J. JUNCTION CONNECTING R. CO.

Supreme Court of New Jersey.

Aug. 6, 1894.

(Syllabus by the Court.)

Petition by the National Docks & New Jersey Junction Connecting Railroad Company for the appointment of commissioners to appraise certain lands which petitioner desired to use in the construction of its railroad. The commissioners were appointed, and the Pennsylvania Railroad Company and the United New Jersey Railroad & Canal Company, in the name of the state, prosecute a certiorari to test the legality of such appointment. Appointment afirmed.

Argued June term, 1894, before REED ABBETT, and DIXON, JJ.

Jos. D. Bedle and J. B. Vredenburgh, for prosecutors.

Chas. L. Corbin and C. D. Thompson, for defendants.

DIXON, J. On March 17, 1894, the National Docks & New Jersey Junction Connecting Railway Company presented to one of the justices of this court an application for the appointment of commissioners to appraise certain lands described therein, belonging to the United New Jersey Railroad & Canal Company, and by it leased to the Pennsylvania Railroad Company, which lands the petitioner desired to use in the construction of its railroad. On this application commissioners were appointed under the general railroad act (Revision, p. 925), and thereupon a certiorari was allowed to test the legality of the appointment.

The first objection made by the prosecutors of the certiorari is that the application fails to show either that the land is to be taken merely for the purpose of crossing, or that the land is not necessary for the franchises of the present owners. The provisions of the statute by which the strength of this objection must be tiled are found in the eleventh, twelfth, and thirty-sixth sections of the act. By the eleventh and twelfth sections authority is given to railroad corporations organized under the act to acquire by condemnation any lands which may be necessary for the construction of their roads, and the procedure for such condemnation is prescribed in terms applicable alike to all lands, irrespective of their ownership. This general grant is, however, limited by the thirty-sixth section, which provides "that no corporation * * * shall be authorized to take, use, or occupy by condemnation any lands * * * of any bridge, railroad, canal, turnpike, or other corporation chartered for the purpose of facilitating transportation, except for the purpose of crossing said lands * * * and except the lands of such other corporations not necessary for the purposes of their franchises." But there are no other directions as to procedure. The effect of these enactments is, we think, to permit the lands of railroad corporations to be condemned by the same forms as may be employed in condemning the lands of private owners without stating the intended uses; but under such forms the lands of railroad corporations will be taken only for the purpose of crossing the same. If the condemning company seeks to acquire such lands for other purposes, another fact must exist to warrant its proceeding, viz. that the lands are not necessary for the franchises of the owning corporation, and under legal rules that jurisdictional fact should be averred in the application. By legal intendment, therefore, the present application, showing that the lands to be...