van Emburgh v. Paterson & State Line Traction Co.

• Citation: 70 N.J.L. 668,59 A. 461
• Parties: VAN EMBURGH v. PATERSON & STATE LINE TRACTION CO.
• Decision Date: 14 November 1904
• Court: United States State Supreme Court (New Jersey)

59 A. 461

70 N.J.L. 668

VAN EMBURGH

v. PATERSON & STATE LINE TRACTION CO.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1904.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Jeremiah Van Emburgh against the Paterson & State Line Traction Company. Judgment for defendant, and plaintiff brings error. Reversed.

Cornelius Doremus, for plaintiff in error.

Hobart Tuttle, for defendant in error.

DIXON, J. The eminent domain act of 1900 (P. L. p. 79, § 9), which, according to its terms, supersedes existing regulations concerning proceedings in condemnation cases, provides that whenever any corporation shall determine to exercise its power of taking land for public use, three commissioners shall be appointed to ascertain the compensation due to the landowner therefor, and that, if either party be dissatisfied with the award made by the commissioners, then in "those cases where an appeal has been or may be given by the statute conferring the power to take land or property for public use" an appeal may be made to the circuit court of the county where the property is situate, and that court is authorized to ascertain by a jury trial the just compensation to be paid. The traction companies act of 1893 (Gen. St. p. 3235) confers on corporations organized under it the power of taking land for public use, and provides for the appointment of commissioners to ascertain the compensation due for the land required, and then directs that, when the commissioners have reported such compensation, the corporation shall apply to a justice of the Supreme Court to appoint a time and place for hearing a motion to confirm said report of which motion due notice is to be given to all parties interested. On such hearing objections duly presented must be considered by the justice, and thereupon he may confirm the report, or send it back to the commissioners to be reformed, corrected, or amended in such respects as he may deem equitable and just. When so confirmed or reformed, corrected, and amended, the award is final.

The question now to be decided is whether this proceeding before the justice of the Supreme Court is "an appeal" within the meaning of the eminent domain act In Paterson & State Line Traction Co. v. De Gray, 56 Atl. 250, the Supreme Court decided that the meaning of the word "appeal" in that statute seemed to be settled by the accustomed use of the same term in similar legislation for many years, and that it described only such a proceeding as conferred upon the appellate tribunal the power of trying de novo by jury the whole question which had been submitted to the commissioners. The present defendant in error contends for the same interpretation on the same ground. Undoubtedly the word is capable of a broader signification. In its general sense, an appeal imports an application made to a higher tribunal for the revision and correction of the decision rendered by a lower tribunal. In this sense it is used in many of our statutes and often where there is neither trial de novo nor trial by jury. The reason given for the narrow meaning ascribed to the word by the Supreme Court is a...