Stockton v. Atl. Highlands, R. B. & L. B. Elec. Ry. Co.

• Decision Date: 30 July 1895
• Citation: 53 N.J.E. 418,32 A. 680
• Parties: STOCKTON, Attorney General, et al. v. ATLANTIC HIGHLANDS, R. B. & L. B. ELECTRIC RY. CO. et al.
• Court: New Jersey Court of Chancery

32 A. 680

53 N.J.E. 418

STOCKTON, Attorney General, et al.

v. ATLANTIC HIGHLANDS, R. B. & L. B. ELECTRIC RY. CO. et al.

Court of Chancery of New Jersey.

July 30, 1895.

(Syllabus by the Court.)

Bill by John P. Stockton, attorney general, and others, against the Atlantic Highlands, Red Bank & Long Branch Electric Railway Company and others for an injunction. Held on order to show cause why preliminary injunction should not issue. Injunction granted.

John P. Stockton, Atty. Gen., and Hemy M. Nevius, for complainants.

Daniel H Applegate, for defendants.

McGILL, Ch. The attorney general and the relators and complainants ask that the Atlantic Highlands, Red Bank & Long Branch Electric Railway Company be restrained from constructing a railway, to be operated by electricity supplied by overhead wires, according to that which is known as the "trolley system," over that portion of the highway between Red Bank and Eatontown, in Monmouth county, which was formerly the Red Bank and Eatontown turnpike, lying within Shrewsbury township.

The highway in question was originally a country road, laid out about a century ago, which subsequently, in 1865, by authority of a charter granted by the legislature (P. L. p. 7), was taken possession of by the Red Bank & Eatontown Turnpike Company, and thereafter was maintained as a turnpike and toll road until 1891, when the turnpike company ceased the collection of tolls and the maintenance of the road. By an act approved March 16, 1893 (P. L. p. 574), the charter of the turnpike company was repealed, subject to the proviso that its repeal should not affect any authority, permission, or franchise to construct and operate a street railway on the roadbed of the turnpike which might have been granted, sold, or conveyed by the company prior to the passage of the repealing act, but that such authority, permission, or franchise should be as valid as if the repealing act had not been passed. The same day that this repealing statute was approved, another statute was enacted, entitled "An act to authorize and regulate the construction of street railways upon turnpikes" (P. L. 1893, p. 342), which provides "that any duly incorporated street railway company of this state may construct and operate a street railway upon and along the roadbed of any turnpike company located within counties of the second class in this state which shall have granted or conveyed such right or privilege to such street railway company"; and. further, that the township committee of a township through the limits whereof such turnpike shall extend may, upon petition and proof of such grant, locate the tracks of such street-railway company, and, after such location shall have been made, the street-railway company shall, in other respects, conform to the law concerning horse and street railways. The defendant corporation was organized April 6, 1895, under the act entitled "An act to authorize the formation of traction companies for the construction and operation of street railways or railroads operated asstreet railways and to regulate the same," approved March 14, 1893, for the purpose of operating and constructing a street railway. A proviso in the first section of that act requires that no corporation created under the act shall enter upon a highway for the construction of new lines of railway, or for the operation thereof, without the consent of the body of the township into or within the limits of which such new line of railways is proposed to be extended. By an act of the legislature approved May 16, 1894 (P. L. p. 374), entitled "An act to regulate the construction and maintenance of street railroads in this state," it was prescribed that "in addition to the provisions or restrictions now required by law, no street railroad shall from and after the passage of this act, be constructed in, over and upon any street, avenue, highway, land or other public place in any municipality, town, township, village or borough of this state except upon the consent of the governing body of such municipality, town, township, village or borough, which consent shall only be granted upon a petition of the corporation desiring to construct, * * * filed with the clerk, * * *" nor until public notice of such application shall have been given by publication in newspapers and by posting for 14 days before the governing body shall meet. The consent is to be by ordinance, and not otherwise, and is not to be granted until there shall be filed with the clerk "the consent in writing of the owner or owners of at least one half in amount in lineal feet of...