Tweddell v. Vill. of S. Orange

• Citation: 112 A. 511
• Parties: TWEDDELL et al. v. VILLAGE OF SOUTH ORANGE.
• Decision Date: 03 February 1921
• Court: United States State Supreme Court (New Jersey)

112 A. 511

TWEDDELL et al.

v. VILLAGE OF SOUTH ORANGE.

Supreme Court of New Jersey.

Feb. 3, 1921.

(Syllabus by the Court.)

Application by Harvey I. Tweddell and others for a writ of certiorari to review the report of the Board of Assessments for the Village of South Orange assessing damages for the taking of lands for the opening of a street. Allocatur denied.

Argued November term, 1920, before SWAYZE, PARKER, and BLACK, JJ.

Merritt Lane, of Newark, for prosecutors.

Adrian Riker, of Newark, for respondent.

PARKER, J. We gather from the briefs of counsel that application for this writ was made, in the first instance, to the Chief Justice, and that allocatur was denied by Mm. Prosecutors have thereupon come to the court in banc, following the practice recognized in such cases as Key v. Paul, 61 N. J. Law, 133, 38 Atl. 823. Defendants object that that decision is not applicable on the ground that the allowance of a writ of certiorari is discretionary, and that Key v. Paul excludes that class of cases; but we think they have mistaken the purport of that decision. The opinion says that, when the motion appeals merely to the discretion of the judge, and does not involve the substantial rights of the parties, the court will usually not review his action.

In the present case the question is whether the prosecutors have a substantial right which would be affected by the refusal to allow a writ; and, as their claim is that the defendants have undertaken to take land or an easement in land belonging to them without making any compensation whatever for the same, it is plain that, if they are entitled to compensation, as they say they are, a substantial right has been affected. Hardly a term passes in which no application is made to the court in banc for the award of a certiorari after the refusal of an allocatur by a single judge; the practice is firmly settled.

The next objection to the allowance of the writ as a matter of practice is that the Chief Justice, in entertaining the application, was sitting, under the statute, as the Supreme Court. But there is nothing at all in the case before us to indicate this. So far as we can gather from the briefs, the Chief Justice made a rule to show cause returnable before himself why a writ of certiorari should not be allowed; and at or after the return of the rule concluded to deny the allocatur, and accordingly discharged the rule. This also is everyday practice, and it has never been intimated so far that a single justice was sitting as the Court merely because, instead of awarding an allocatur or denying it, he chose to have the matter exploited by a rule to show cause. This reason also is without substance.

The cases cited by the defendants such as Dubelbeiss v. West Hoboken, 81 N. J. Law, 98, 79 Atl. 290, are cases where certiorari was heard on final hearing and after allowance under section 5 of the certiorari act C. S. 403. The third point of practice urged against the allowance of the writ is that after the award was made, and which award provided that the prosecutors were not entitled to any compensation for the appropriation of their land as a public street, they appealed the matter to the circuit court of the county of Essex, and that appeal is still pending. As to this, our view is that the appeal to the circuit court is normally upon the question of how much damages the prosecutors are entitled to, and not, as in the present case, as to whether they are entitled to any damages at all, or are barred, as the defendants claim, by dedication of the lands taken.

We come therefore, to the merits of the controversy. The ground on which all compensation was refused to the prosecutors by the commissioners for the municipality was that they, or those under whom they claim, had some years since dedicated the lands lying within the lines of the new street called Fifth street to the public use, and that in such case they are not entitled to any compensation when the public accepts the dedication and undertakes to open the street. This is the rule settled by the leading case, among others, of Clark v. Elizabeth, 37 N. J. Law, 120, 120, affirmed in 40 N. J. Law, 172. If these lands were,' in fact, legally dedicated and accepted, there should he no allocatur.

The fact of dedication appears to be perfectly clear upon the uncontradicted affidavits in the case, the lands taken consisting of a strip 50 feet wide and about 425 feet long, running northwesterly, substantially at right angles between Prospect street on the southeast and Academy street on the northwest, through a considerable tract of land which in the decade between 1870 and 1880, to speak without precision, was owned by Charles E. Gardner. Gardner subsequently transferred ownership to his wife, and during the period when he or she owned the property various deeds were made by them to purchasers of portions of the tract. The affidavit on the part of the prosecutors states that the claim of dedication by the village was based upon the language of a deed from Gardner to David R. Muchmore in 1873, containing an agreement that Gardner is to open a new street 50 feet wide, making the lot conveyed a corner lot fronting on Prospect street and said new street, said new street to be opened by said Gardner from Prospect street to the west corner of the above-described lot in one year from the date of said conveyance. The affidavit does not state the description of the lands conveyed, nor does it appear elsewhere in the case. The affidavit does state that "there were other deeds for other tracts which contained the same general provision." This, however, seems not quite ingenuous, for an examination of the affidavit of defendant's title searcher...