The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1893-02-13
BOTH Sides BEATEN.
Judge Depue's Two Edged
Decision in the Brown
Place Controversy.
LEHIGH VALLEY BLOCKED.
1t Cannot Condemn the Land, Bui
Neither Can the City Sweep
Away the Bridge.
Spscial to The Jersey cftu Mems.

Special to The Jersey city Netos.
TRENTON. Feb. 13. 1s93.-The Supreins
Court has at last settled the Brown Place
controversy. 1t will be remembered that
on September % last, the Board OF Street
and Water Commissioners of jersey City
took up what was known as the Lembeck
petition. and adopted series OF resolu'
tions, one of which declared the strip IN
question to be a public street. In the
afternoon of that day. and before thesa
resolutions were passed. the railway
company served upon Mayor Wanser
notice of an application for the appoint
ment of commissioners to condemn the
strip of land in question. 1t will be re-
membered also that Mayor Wanser
sought to evade the service of
these papers upon him by absenting
himself for several days from his Office.
Nevertheless, the papers were fin ally
served and the case was argued BY Coz
poration Counsel Edwards on behalf OF
The city, ana Collins s. Corbin aDd ex-
Governor Bedle oa behalf of the railway
company. before Justices WertS and
Depue.
The opinion is written by Judge Depue,
SclbIDS dSiQe bH0 VI
sioners to condemn the strip of land in
question, and also the third resolution OF
the Street aud Water Commissioners, or
dering the Lehigh Valley Terminal Rail-
way Company and the National Docks
Railway Company forthwith to remove
all abutments and obstructious placed by
them within the line of said street.
CONDITIONS OF CONDEMNATION.
The text of the opinion in the proceeds
ings against the National Docks Railway
Company is as follows:-
These proceedings have given rise to two
wrts OF certiorari; the one in behalf of the city
to review the order appointing commissioners
to condemn the other by the railway company
to review the resolutions of tue board of the
29th of September, 1892.
The General Railroad law authorized the con-
domination of lands required for railroad pur-
poses only in case the company cannot agree
or when by the legal incapacity or abb
sence of such owner no such agreement
can be made. The power of condemnation un-
der the right of eminent domain is strictly con-
strued, and is subject 10 the conditions and
restrictions imposed by the legislative grant
The proposition of the railway company to the
vember 81, 1891, and the acceptance OF
the proposition by the board by
the resolution of December 3, 1891, was an
agreement for the use OF these lands for q
crossing. This agreement was made by the
company with full knowledge that the city con-
tempated the use of this strip for street, and
was required for that purpose.
The rights of the public in this controversy
are not to be overlooked. The sewer constructed
through the premises is only i've feet in width
strip fifty feet wide was acquired obviously
with view to its use for public street. The
cost of this strip of land to the city was over
$4,000, and three fourths of the en-
tire expense of the improvement was assessed
for benefits by an assessment upon the owners OF
lands over large section. That such a street is
or may be required for public accommodation
is apparent from the application to the city au-
thorities that 1t be made street, signed by over
one hundred taxpayers and residents in the
locality for which the street would afford an
outlet. Among these applicants are the owners
of lands which were assessed for the improve
ment.
SUFFICIENT GRANTS HERE.
The Legislature has expressly made the in
ability of the company to obtain such lands by
an agreement with the owner, the condition on
which toe power might be exercised. Inability
TO agree with the owner for the use or purchase
of such lands is made juriSdctional, fact
necessary to legalize condemnation proceedings
A company having acquired SUCH lands as at the
time seemed sufficient for its purposes
may acquire additional lands by condemnation
when additional accommodations may become
necessary to enable the company to exercise its
franchises A company in the use of premises
for railroad purposes under a lease for an unex-
pired term may, under its charter power. take
the same promises in fee by condemnation
when the leasehold is so limited in
its continuance and SO qualified in
its character as not TO suoserve the
provement authorized by its charter. But no
coutingence of an analogous import has arisen
in this case The survey and location OF the
company's road on which it is being constructed
was adopted prior to the making of this agree
ment The plan adopted in the agreement
affords reasonable means to enable the com
pany to effect a crossing over a public
street, and is su ch as is necessary
to accomm odate the public in the use of the
contemplated street. The case disclosss moth
ing which would justify the company in with
| drawing from its agreement and resorting to
condemnation proceedings TO avoid its own con-
| tract. The order appointing commissioners
THE BOARDS ACTS LAWFUL.
The other writ OF certiorar1 presente by the
| review the resolutions of the Board, passed on
September 2s, 1899. Tho first OF these
resolutions declares that the strip of
| land in question, through which the
Brown place sewer has been Constructed,
| shall be public street. This resolution is SIM
| ply an act of dedication 10 public uses by the
city of the strip in question, and the CITY, as the
owner of lands acquired as these lands were, had
power to appropriate them to such use. This
resolution has ne other office or effect and is un-
1 Objectionable.
! Tne second resolution, instructing the chief
| engineer to prepare a grade map for public
| street. and the fourth resolution, directing the
proper law officers Of the city to take such
| measures in the name of the city will secure
| Brown Place as uniucumbered street from
| Avenue e to the easterly boundary line OF New
YolE 3 ", together with the first resolution OF
the board, last above referred to in the opinion,
| are sust aimed.
| In setting aside the third resolution of.
| the Board, the opinion reads:-
Neither under the city charter nor in
| compliance with the terms of the agree
ment with the railway company WAS it
com petent for tGa Board of Street and
| Water Commissioners by a resolution to
make the locus In quo public street and
| impose upon the cly the expenses incl
| dent to the construction maintenance
| and reparation at public expense.