Vannoy v. Borough of Pennington, 264.

• Decision Date: 14 January 1931
• Docket Number: No. 264.,264.
• Citation: 152 A. 784
• Parties: VANNOY v. BOROUGH OF PENNINGTON.
• Court: New Jersey Supreme Court

152 A. 784

VANNOY

v. BOROUGH OF PENNINGTON.

No. 264.

Supreme Court of New Jersey.

Jan. 14, 1931.

Certiorari by Walter R. Vannoy against the Borough of Pennington bringing up for review certain ordinances of said borough and proceedings thereunder.

Sidewalk ordinance and all proceedings thereunder set aside, and grading ordinance affirmed as valid municipal act.

Argued May term, 1930, before PARKER, CAMPBELL, and BODINE, JJ.

Henry M. Hartmann, of Trenton, for prosecutor.

Cassel R. Ruhlman, of Trenton, for respondent.

PER CURIAM.

This writ brings up for review two ordinances of the borough of Pennington, one fixing and establishing the lines and grades of sidewalks and curbs on the easterly side of South Main street, and the other providing for the construction of such sidewalks and curbs by the adjoining property owners and at the sole expense of the latter; and also brings up for review proceedings under such ordinances and particularly those that affect the property of the prosecutor which adjoins and abuts the line of the proposed improvement.

It appears that the grade established will require a cutting down of the highway in front of prosecutor's lands three feet five inches or three feet ten inches and the removal of seven or eight large" trees. It is estimated that the cost of this will be $650. This cutting down of the grade will also come within five feet of the foundation wall of prosecutor's dwelling, and probably will require the construction of a retaining wall to protect his property.

The prosecutor urges the setting aside of these ordinances and proceedings upon these grounds:

Because the statutes under which the ordinances are enacted are unconstitutional This is said to be so because they authorize and seek to take property without compensation in violation of article 1, § 16, of the State Constitution and the Fourteenth Amendment of the Federal Constitution.

It is argued that the statutes and the ordinance in question compel the laying of sidewalks on property owned and occupied by the prosecutor and at his sole expense and for the benefit and enjoyment of the public. Statutes of this character are not unconstitutional. Sidewalks and curbs are necessary incidents to the public use of a highway, and a change of grade of the highway adjacent to the lands of the prosecutor does not entitle him to damages therefor. Agens v. Newark, 37 N. J. Law, 415, at page 423, 18 Am. Rep. 729, Hedden v. Verona, 82 N. J. Law, 736, 82 A. 880, and H. J. Sommer & Company v. State Highway Commissioners (N. J. Sup.) 148 A. 171.

The next point argued is that the ordinances were not adopted in accordance with the requirements of chapter 152, P. L. 1917, p. 319, as amended by chapter 244, P. L. 1928, p. 425, and that they are arbitrary and unreasonable.

Prosecutor's first contention under this point is that the power to alter the grade of a street is under paragraph C, article 20, chapter 244, P. L. 1928, and that it must be undertaken as a local improvement and the costs assessed according to the benefits conferred, and that section 1 of article 25 of the Home Rule Act (chapter 152, P. L. 1917), relating to the construction of sidewalks and curbs, does not contemplate substantial grading, removal of trees, and the construction of retaining walls at the expense of the adjoining owner. Now it appears that chapter 244, P. L. 1928, has no reference or application to the question of establishing the grade of a highway, and contains no article 20, paragraph C. We agree with the contention of the prosecutor, however, that the substantial grading of a highway, not only from curb line to curb line, but for its full width from property line to property line, is either a local improvement, the cost of which may, in whole or in part, be assessed against the lands benefited to the extent that they are specially benefited, or a general improvement, the cost of which is to be borne by funds raised by general taxation. Only such slight and incidental grading as to make sidewalks and curbs conform to the established grade may be made a part of the cost of constructing sidewalks and curbs and directly to be paid by and charged against the abutting landowner. If the ordinance requiring the construction of sidewalks along the line of prosecutor's lands requires him to bear the sole cost of the substantial grading, removal of trees and building of retaining wall, then such ordinance cannot be sustained as proper municipal legislation. This will be dealt with under another point.

The next contention is that the sidewalk ordinance and the notice to the prosecutor thereunder are uncertain as to what work is required. We think this is without merit. The ordinance provides :

(a) That the owner of land fronting on South Main street is required "to construct, pave, repave, improve or repair at his, her, its or their own proper cost and expense the sidewalks. * * * "Then follows a specification of such construction, and then "and said sidewalks and curbs and the ground both inside and outside the...