Twp. Comm. of Kearney Tp. v. Ballantine

• Citation: 54 N.J.L. 194,23 A. 821
• Parties: TOWNSHIP COMMITTEE OF KEARNEY TP. v. BALLANTINE et al.
• Decision Date: 29 February 1892
• Court: United States State Supreme Court (New Jersey)

23 A. 821

54 N.J.L. 194

TOWNSHIP COMMITTEE OF KEARNEY TP.

v. BALLANTINE et al.

Court of Errors and Appeals of New Jersey.

Feb. 29, 1892.

(Syllabus by the Court.)

Error to supreme court.

Condemnation proceedings by the township committee of Kearney township against John H. Ballantine and others. From a judgment setting aside such proceedings the committee brings error. Affirmed.

Frederic W. Stevens, for plaintiff in error.

John R. Emery, for defendants in error.

DIXON, J. This writ of error brings up a judgment of the supreme court setting aside proceedings taken by the township of Kearney, in the course of which lands of the defendants in error were condemned for the opening of a street. One of the grounds, upon which the supreme court based its judgment, is that the award for the lands condemned was made without notice to the owners of any hearing before a tribunal authorized to fix the amount thereof. The only legislative authority for the proceedings taken is found in the charter of Kearney township, approved April 6, 1871, (P. L. 1871, p. 1371.) This charter provides, in the case of opening a street, that, after the passage of an ordinance for making the improvement, and a reference of the matter to the commissioners of assessment, these commissioners shall examine into the whole matter impartially, and shall make a report, called a "preliminary report," showing the value of the land to be taken, and the damages to be done by taking it, and also showing the commissioners' estimate of the whole cost of the improvement, and an assessment of this estimated cost on the property benefited. Sections 43, 49. Then, unless the owners of a majority of the land so assessed for benefits shall, after due notice, remonstrate against the improvement, (section 44,) the value and damages a warded for land to be taken shall be paid or tendered to or deposited for the owners, and thereupon the township committee shall proceed to make the improvement, (section 50.) When the improvement shall have been completed, the commissioners of assessment are to make a second report, called a "final report," showing the value of the land taken, and the damages done by taking it, (section 49,) and also showing the actual cost of the improvement, and an assessment of this cost upon the property benefited, (section 45.) This assessment of the cost is, after public notice of the time and place of hearing, to be considered by the township committee (section 45,) and, if confirmed by them, becomes a lien upon the land assessed, (section 46.) It is evident from these provisions that the amount to be paid for land taken and damages is to be finally ascertained and reported in the first report of the commissioners of assessment. Their second report is not to be made until after the improvement is completed, while the landowner is entitled to compensation for his land and damages before the improvement is begun. It also appears that no authority is given to the township committee to review this first report, their power of consideration being confined to the assessment for benefits stated in the second report. The commissioners of assessment, therefore, constitute the only tribunal charged by the statute with the duty of fixing the compensation to be paid to the owners of land taken. This is a judicial duty, and therefore, although the statute is silent on the subject of notice, it was essential to the legal performance of their functions that the commissioners should have afforded to the land-owners a reasonable opportunity of being heard,...