Zimmerman v. Hudson & M. R. Co.

• Decision Date: 09 November 1908
• Citation: 76 N.J.L. 251,71 A. 127
• Parties: ZIMMERMAN v. HUDSON & M. R. CO.
• Court: New Jersey Supreme Court

71 A. 127

76 N.J.L. 251

ZIMMERMAN

v. HUDSON & M. R. CO.

Supreme Court of New Jersey.

Nov. 9, 1908.

Condemnation proceedings by the Hudson & Manhattan Railroad Company against Samuel Zimmerman. Application by defendant for certiorari to review the action of the commissioners, and for rule to show cause why mandamus should not issue to compel the framing of an issue. Certiorari denied, and rule to show cause allowed.

Argued February term, 1908, before GUMMERE, C. J., and BERGEN and MINTURN, JJ.

J. Merritt Lane, for the rule.

Collins & Corbin, opposed.

GUMMERE, C. J. Zimmerman, the applicant in this matter, seeks a certiorari to review the action of commissioners appointed in a condemnation proceeding, instituted by the Hudson & Manhattan Railroad Company, to acquire a tract of land owned by one Hill and in the possession of the applicant under a lease which does not expire until 1910. The ground of the application is that the commissioners erred in reporting the value of the property taken, and the damages sustained by the taking, in a lump sum, instead of making a separate award of the moneys to be paid to the applicant for his leasehold interest, and of the amount to be paid to Hill, the owner of the fee.

The revised railroad act of 1903 (P. L. p. 645), under which the company exercised the right of eminent domain, provides in the thirteenth section that the proceedings to condemn shall be had pursuant to "an act to regulate the ascertainment and payment of compensation for property condemned or taken for public use." P. L. 1900, p. 79. The fifth and sixth sections of that act provide that commissioners shall be appointed "to examine and appraise the said lands or property and to assess the damages," and that they shall "proceed to view and examine the land, or other property, and make a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the petitioner for such land, or other property, and damage aforesaid." This enactment is almost an exact transcript of the condemnation clause of the general railroad law (Gen. St. 1895, p. 2641, § 12), which provides that commissioners shall be appointed "to examine and appraise the said lands or materials, and to assess the damages," and that when appointed they "shall proceed to view and examine the said land or materials, and to make a just and equitable assessment, or appraisement, of the value of the same, and an assessment of damages to be paid by...