Montclair Military Academy v. North Jersey Street Railway Co.
Montclair Military Academy v. North Jersey Street Railway Co.
Opinion of the Court
The opinion of the court was delivered by
The plaintiff, in the spring of 1898, was the owner of real property fronting on Bloomfield avenue, Mont
The present suit was brought'to recover damages for the defendant’s breach of that agreement, and the plaintiff, after trial in the Essex Circuit, obtained judgment in the Supreme Court.
The validity of the agreement was first questioned by a demurrer to the third count of the declaration, but was affirmed in the Supreme Court on an opinion set forth in 36 Vroom 328. Thereupon the demurrer was withdrawn and a plea of the general issue was filed. This eliminated the demurrer from the record and precludes consideration of it as such. Delaware, Lackawanna and Western Railroad Co. v. Salmon, 10 Id. 299, 301: The count, however, remains, and if it appeared that the judgment rested upon that count its sufficiency would be a proper subject for review on this writ of error; but that does not appear, as the judgment rests upon a general verdict for the plaintiff, supported by other counts clearly good. But the same question in substance was raised at the trial by an exception taken to the charge of the justice presiding, and it is thus now
The opinion of the Supreme Court sustaining the agreement is based upon an assumption that the plaintiff, as owner of land abutting on the avenue and presumptively entitled to the fee as far as the middle, had certain rights of property which would be invaded by the construction of the railway and its appendages, and for which, therefore, it could demand and contract for compensation. On that assumption the conclusion reached is supported by the English eases cited by the learned jurist who prepared the opinion and also by dicta in White v. Manhattan Railway Co., 139 N. Y. 19, and other cases: But we think the hypothesis is not justified.
In Halsey v. Rapid T. S. Railway Co., 2 Dick. Ch. Rep. 380, and West Jersey Railroad Co. v. Camden Railway Co., 7 Id. 31, the Court of Chancery, and in Kennelly v. Jersey City, 28 Vroom 293, the Supreme Court, held that the right to construct and operate electric railways, with their incidental poles and wires, within the lines of public streets for municipal travel, was included in the ordinary public easement and did not impose any additional servitude on abutting property. The reasoning by which these decisions were maintained, as set forth fully by Vice Chancellor Van Fleet in the first of the cited cases, is entirely satisfactory, consequently when the legislature required the consent of a certain portion of the abutting owners to be obtained before such a railway could be built in front of their property, a gratuitous privilege or power was delegated to them. The reason for such delegation is not obscure.
Abutting owners have a certain relation to the public streets in front of their property, which, while it is subordinate to the public easement, yet places them on a footing unlike that of the rest of the community. Because of this relation special advantages and disadvantages accrue' to them from street railways, and the legislative design clearly was that, unless' it should be rendered probable that
We think the contract set up by the plaintiff violates the public policy declared by the statute now under consideration, and it is therefore not enforceable. Authority to support this position m,ay be found in Smith v. Applegate, 3 Zab. 352; Kean v. Elizabeth, 6 Vroom 351, 357; Doane v. Chicago City Railway Co., 160 Ill. 22.
The judgment of the Supreme Court must be reversed.
Reference
- Full Case Name
- THE MONTCLAIR MILITARY ACADEMY, IN ERROR v. THE NORTH JERSEY STREET RAILWAY COMPANY, IN ERROR
- Cited By
- 4 cases
- Status
- Published