The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1892-11-10
COUNTY ROAD VICTORY
Continued From First Page.

In case the owner or owners have land enough
left for that purpose, and the appFaisemeut Of
said commissioners, having due regard to all
attendant expense, shall be made accordingly.
SIT appears BY the report, that, In the
case OF O'Flaherty's property. the Com
missioners concluded that the county
should take the buildings which stand
wholly on the land taken and so much OF
a building, standing partly on that land.
as IL within the lines, and, III the case OF
SchoDpert's property, they have adiudged
that the owners should move back a BIZ
sected building, having land enough left
for that purpose. In both cases the de-
cisions comply with he statute.
Says Mr.. Lewis (Em. Dom. Sect. 277:
SIN the absence Of any constitutional restraint
10 rests with the Legislature to say what interest
or estate in lands shall be taken Tor public use.
Tho whole matter thus being in the discretion of
the Legislature, it may authorize a fee to be
taken and necessarily may authorize any lesser
estate or interest to be taken, according to its
views of the requirements of the grantee and
the demands of the public good.
BUILDINGS MAY BE TAKEN.
81 see no reason to doubt that this
legislative discretion may be exercised,
not merely with regard to the land itself,
but also with regard to the other COM
ponents Of the real estate, such as build
ings. and that these may be taken abso-
lutely when their destruction or removal
ID necessary. although only an easement
In the land be acquired. Such a
condemnation seems clearly to be
warranted by the statute. Ac-
cording to the sixth section of the origi-
nal act, the Board of Chosen Freeholders
acquires the right 10 have. hold. use, &C.
cupy, possess and enjoy the said lands
and real estate only for the purposes of
said road, but. under Section 10 of the
Act and Section 2 of the supplement, they
m n ~ fmEn thu hnflATn0Q AhColnfnlv aud
remove and dispose of them for their own
advantage. To this effect is the O'Fla-
herty condemnation.
"The action taken with respect to the
Scnoppert buildings. in which the public
ACQUIRES no right, rests upon a different
footing. In Taylor v. New York and
Long Branch Railroad Company, 8
Vroom %, this Court held that it W as
proper for the Legislature to empower
the corporation to condemn the land,
without taking any right in trees grow
ing thereon which were not useful in the
construction OF the railroad. On the
same principle, the Freeholders, under
take buildings which could not
be used for the purposes of
the highway. The Schoppert building
was. therefore, lawfully left as the
property of the private owners, and as 1t
stood within the lines of the highway, it
became their duty to remove it
within a reasonable time. Whether
forced by Indictment of the owners
for nonfeasRnce, or whether they could
only be subjected to the loss
that would follow on the opening and
clearing Of the road by the public Is not
now the question. The owners certainly
have the right Of removal, and the award
compenaates them for the expense.
SIN Cur INDIGNANT p0no nf thA pPnnonJ1-
tors objections is sustained. and the pro-
ceedinRs should be affirmed, with costs.
SYLLABUS.
The following syllabus accompanies
the decision;-,
]. Under the Constitutional pr DIVISION that
private property shall not be TAX en- for public
use without just compensation, but land may be
taken for public highways ms here tofore, until
the Legislature shall direct compensation to be
made" the practice of the State. continued from
1716 until after the adoption of the Constitution
In 1874; not to lay out roads of a greater width
than 70 NJ rods. is a limitation of the legislative
powert o take land for highways without COM
pensation.
2. just compensation for taking part of an
entire tract of land for public use cannot be as
certained, without considering all the proximate
part taken from the dominion of the former
owner. the damage done to the residue by the
separation, and the benefit Immediately
sion e e he the BART sesl taken from tn = the es asgS,
public use. But what are called general
benefits should not be considered, because, first,
they are to arise. if at all, in the indefinite
future, while the compensation must be such as
is just st the time of taking; and, secondly,
they are so uncertain in character as to be in
capable of present estimation.
b. BY .sthe benefits that will result from such
road, under the County Road act of April Z,
1888, are meant not the benefits to result from
the road when improved as the statute directs,
but those resulting from the road merely as it is
laid out.
q. The Legislature may constitutionally pro-
vide that the public, in taking land for high
ways, may take the buildings on the land abso-
lutely, or may take no interest whatever in the
buildings.