The star and Newark advertiser. [volume] (Newark, N.J.) 1908-1909, 1908-12-19
CITY DOES NOT
HAVE To PAY FOR
STREET VACATION
Justice Swayze in Opinion Over
throws Damages Awarded TO
Local Propertyz0wners.
WAS USED FOR
PENN. R. r. ELEVATION
-
Loss of LandhoIders Merely an
Incidental One, Jurist
Holds in Opinion.

The city law department today re-
c2ived an opinion from Justice Swayze.
of the Supreme Court, overthrowing
damages awarded by the Assessment
Commissioners to George T.. HIATT and
others for the vacating of the streets
in order 70 provide for the elevation
of the Pennsylvania railroad tracks in
this city Several years ago. The de-
cision Is regarded as a signal victory
for the city. Francis Child, jr., and
Malcolm MacLear were attorneys for
the city during the trial.
Justice Swayze finds in his decision
that the right of a property owner to
damages for the vacation of a street,
when his property is not deprived of all
access, depends upon the statutory
provisions for compensation, and that
under the supplement to the charter of
Newark, property owners are not en-
titled to damages for the vacation of a
street when the vacation does not de-
prive h property of all access.
The defendants were: George r.
HIATT, awarded 1000; Edison Brown,
$4,000; Charles Kilburn, $4,000; Walter
w. Osborne, 81, 500, AID many others
who were interested, including A. e.
Stoutenburgh, Charles Benisch, Simon
Wright, Carl BREEDING & Son, August
Puerman. George r. HIATT. Addison
Brown, Essie H. Ray, Wilmington &
Bradshaw. william Hill, Albert Smiths
Sons, Blanchard Bros. & Lane, Charles
A. Miner, Jacob Meyer, b. Conlon &
Co. and r. c.. Boice Co.
The Decisfon.
The opinion goes on to say:
1.-THE city of Newark, in pursuance
of a contract with the Pennsylvania
Railroad and the Central Railroad. va
Gated certain streets near to, but not
abutting upon the lands of the defend
ants. There was still access to the
lands from the city, except by way of
the portion of the streets vacated. One
of the streets upon which the proper
ties of Kilburn and Osborne abutted
was made cpl de sac. The Circuit
Court held hat the true rule for esti-
mating damages was the direct and
substantial depreciation of the market
valu of the land, consequent upon
such vacating = = and should be
considered by the commissioners of as
sessnent, and directed the commits
sioners to award to the DIRECTORS such
damages as had resulted by reason OF
the ~vacating of the streets. the eleva-
ton of the tracks, the building oil
structures in connection there
with, and the operation of the
railroads upon the elevated structure
Loss incidental.
I'm the present case the defendants
probably Rave suffered by the vacation
of the street a depreciation of the
value of their property, becaus 1t has
a less convenient access to certain por-
tfons of the city and Is situated upor
only one. t~horoughfare instead Of two
but this loss is " " = a loss arising
out of the probable diversion of traf.
fic, and hence incidental only. The de.
PENDANTS naturally might anticipate 6
continuance of the street and the prob.
ability of a continuance of the added
value of the land, but their legal righf
was to nave 1t continued only so Ions
as the city authorities might find it t.
the public interest"