The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1892-11-10
The Assessment of Property
for Benefit Upheld
By the Courts.
100000 SAVED THE COUNTY
Immediate Advantages, Which
Can Be Appraised, to Be
Deducted From Damage
Claims.
Text of Judge Dixon's Decision in
Maria Mangles' Certiorari
Test Suit,

A dispatch was printed in the JERsEY
CITY NEWS few days ago. mentioning
the fact that decision had been filed in
the case of Maria Mangles and others
against the Board of Chosen Frseholders
of Hudson county. Today the full text
of that decision is printed. These cases
were appeals from the awards of the
Commissioners who condemned the
lands on the first and second sections of
the County Road
Mrs. Maugles' property was IN Bay
onne and MIR. O'Flaherty, another of the
appellants, had some property at Dan
forth avenue and Old Bergen Road. VIII ich
was taken for the uses of the road. In
making the awards, the Commission ers
raised novel question and one which
had not been adjudicated upon before.
They deducted from the awards a sum
which in their judgment represented tn
benefits which the property facing the
road would accrue therefrom. This, tine
property owners along the sections re-
sented and proceeded to test the matter
in the courts, The cases herein before
mentioned were taken into the Supreme
Court and pade a. test case, which it
was agreed should determine the matter.
Judge Dizop rendered the decision and
rules thaT the Commissioners could
charge behefits against the property fac
ing the/road. This is most important
nlattsf. as it will save TO the taxpayers of
the county. who will have TO pay for the
cost bf The road, at least, 100000. The
full text of Judge Dixon's opinion fol-
loTwsk
The case was argued at the June term
before justices Werts and Dixon. Mr..
Van Busktrk and .Messrs. Collins and Cor
bin appeared for prosecutors and Judge
McGratb, Mr.. W, D. Edwards and Mr..
A. @. Garrets9h for the county. The
opinion of he Court was delivered by
Judge Dixon. 1t reads as follows:-
The subject for consideration is the
report OF Commissioners appointed to
make awards for lands taken in the OPEN
ing of Section 2 of a public road laid out
in the County of Hudson, under An act
TO authorize the Boards of Chosen Free
holders in the several counties Of this
State to lay out, open. construct, improve
and maintain public road therein ap-
proved April 2. 1888 (P. l.. 1888 d. 397.
The report was fled June l. 1892 and, in
the case of each of the prosecutors.
states that only part of his land was
required, and ascertains the value of that
part, the amount of damages which the
owner will sustain by reas on of such TAX
ing. and the amount Of benefits that will
result from the road to him as owner of
his remaining lands. Then deducting
the amount of the benefits from the sum
of the value and damages, the report
awards the difference to each owner as
his compensation under the law.
This feature OF the report presents the
first object of attack by the prosecutors;
Ihey insist that their Constitutional right
to just compensation has been withheld
by the deduction for benefits. On the
other hand the defendants claim that the
prosecutors have no Constitutional right
at all. because. while the Constit ution
provides that private property shall not
be taken for public use without just
compensation 1t adds, but land may be
taken for public highways as heretofore,
until the Legislature shall direct compen-
sation to be made
''This position of the defendants will
first be examined.
OLD TIME PRACTICE.
I'm the exceptive clause of this Copsti-
tutional provision, no words are more
worthy of consideration than these as
heretofore in Withholding from the
owners of land taken for highways. that
compen Sation which natural Justice re-
quires should ordinarily be made for pri-
vate property needed for public use, the
trainers Of our organic law had regard
to preceding practices in this State which
had been adhered TO through several
generations One of these was that of
the original proprietors of New Jersey, of
ltt 0fcly kIduG VI lHuu d Sp6CluC
allowance for the opening of highways,
which in East Jersey was 5 per cent. lin
matter of highway, 2 Zab. 293.) The other
was practice enjoIned by the Legisla-
ture from early colonial times, and per-
sis led In uniformly until after the adop-
tion of our Constitution in 1874. that Of
limiting the width of highways to four
rods. See the Acts OF 17l6 Il Nevill, Oh,
XIII. Sect. 81, of 1774 (AlIinson, Oh. D,
L. xxx, Sect 3 of 1879. paterson,
z; SS7, Sect; y OF 1913 GElm
is4s Rs Nix f Da D. ssed @ sect e apq These Key nrae ct
tices naturally accompanied each other
and together justified, in large measure
at least, the exception which was made.
1t is his legislative limitation, think,
which is chiefly pointed at, by the words
.as heretofore and il 1t be transgressed,
the genera: right to compensation must
be enforced. Said Chief Justice Green,
In Zab. 304, While there would be
manifest impropriety iu disturbing, with
out legislative authority, the practice of
taking land for highways as here
tofore.' sanctioned as it is
be still more obvious Improperly in
giving greater latitude to the practice.
n It is the duty of the Court to
main.ain the law as it stood at the adop-
tion of the Constitution, but not to extend
its operation.
"The statute on which the present pro-
ceedings are based authorizes road one
hundred feet wide, and this is admitted
to be the width OF the highway now pro-
iected. The prosecutors therefore have
Constitutional title TO just compensation.
"What is meant by the Constitutional
terms Just compensation is a matter
which has received most judicial consi-
deration. and when IL was 10 be awarded
for part of a tract of land taken for pub
lie highway, great diversity of opinion
has been entertained concerning it.
Whether the compensation was to equal
only the value of the land taken or was
co include the damage done to the
residue, and whether the general
to tie residue from the public use of the
part taken. was to be considered in
ILLUMINATION of the value or damages or
both. are the questions about which the
variant discussions have centered. 1t
Fo1ld be useless to refer TO The numerous
passes, which are cited in the text books.