Sullivan v. The North Hudson County Railroad Co.

• Court: New Jersey Supreme Court
• Writing for the Court: DIXON, J.
• Citation: Sullivan v. The North Hudson County Railroad Co., 51 N.J.L. 518, 18 A. 689 (N.J. 1889)
• Decision Date: 15 June 1889
• Parties: DANIEL M. SULLIVAN, PLAINTIFF IN ERROR, v. THE NORTH HUDSON COUNTY RAILROAD COMPANY, DEFENDANT IN ERROR

18 A. 689

51 N.J.L. 518

SULLIVAN

v. NORTH HUDSON COUNTY R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1889.

(Syllabus by the Court.)

Error to circuit court, Hudson county; KNAPP, Judge.

Mr. Wills and Mr. Collins, for plaintiff in error. J B. Vredenburgh and Mr. Besson, for defendant in error.

DIXON, J. Under "An act to enable streetcar or horse-railroad companies to provide better accommodation to the public by using what is now known as the 'cable system for motive power on elevated railroads,'" approved March 26, 1886, (P. L. 1886, p. 126,) the North Hudson County Railroad Company obtained the appointment of commissioners to examine and appraise the easement and right of passage over Oakland avenue, Jersey City, in front of two city lots, with apartment houses erected thereon, situate on the westerly side of said avenue, and belonging to the plaintiff in error. The railroad to be constructed was to be elevated at least 13 feet in the clear above the street, to be supported by pillars set on each side of the avenue not less than 30 feet apart longitudinally, and to have double tracks, over which passenger cars were to be drawn by a wire cable put and kept in motion by stationary steam-power, located near the intersection of Palisade and Ravine avenues. The commissioners appraised the value of the easement and right of passage at $25, and assessed the damages of the plaintiff at $20. The plaintiff thereupon appealed to the circuit court of Hudson county, where an issue was framed, a jury trial had, a verdict rendered for a somewhat larger aggregate of value and damages, and a judgment entered therefor, with costs, in favor of the plaintiff. To review questions of law decided during that trial the plaintiff has sued out the present writ of error.

The defendant moves to dismiss the writ on the ground that it will not lie in such a case. Our constitution (article 6, § 5, par. 3) declares that "final judgments in any circuit court may be brought by writ of error into the supreme court, or directly into the court of errors and appeals." The statute already mentioned requires the circuit court to enter judgment on the verdict of the jury, and to award execution thereon. The judgment so entered is therefore final. It follows from the very words of the constitution that the writ of error was lawfully issued. The same conclusion must be reached from previous decisions in this court. A writ of error will run from this court to the supreme or circuit court to bring up any decision therein which is final, in the nature of a final judgment, and which has not proceeded from a matter resting in discretion. Eames V. Stiles, 31 N. J. Law, 490; Adams v. Disston, 44 N. J. Law, 662. We proceed, then, to consider the alleged errors. The assignments of error mainly relied on by the plaintiff relate to the rulings of the court touching the measure of damages; the plaintiff contending that the jury were required to set off benefits to land not taken against the damages arising from the taking. The benefits which may accrue to a land-owner by reason of the construction and operation of a railroad across his land are usually regarded as consisting of two classes,—general benefits, being those which affect the whole community or neighborhood, by increasing the facility of transportation, attracting population, and the like; and special benefits, being those which directly increase the value of the particular tract crossed, as if a cut required by the railroad should drain a swamp, or a necessary embankment should maintain a mill-pond, or if a bridge, which the railroad company had to build, should afford a better way between portions of the tract. Of special benefits, there are none in the present case. No advantage could possibly inure to the property of the plaintiff from the construction and operation of this railroad which would not, in greater or less degree, be enjoyed by the entire neighborhood. The plaintiff's counsel, in their brief, justly say: "It is perfectly clear that any enhancement of value to property either on or off Oakland avenue, from this elevated railroad, must arise from increased facilities of travel. There is not the slightest suggestion of benefit from any other cause."

The first question for decision, then, is whether it is true that the judge instructed the jury to set off general benefits against the damages. The matter of benefits arose early in the trial, when counsel for the company was cross-examining a witness of the plaintiffs, with a view of showing that the elevated road rendered the street safer for children than an existing surface railroad. On objection, the judge excluded the inquiry, saying: "The rule undoubtedly is that general benefits are not to be considered." "I have no doubt that the general benefit has to be eliminated."...