Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1914-06-18
NEWARK DEFENDS
/ PR. R. FIGHT TO
REGAIN STREETS
nradner. Before Court of Ap-
Peais, Shows How Railroads
Seizure Is illegal.

lily Attorney Frank T.. Bradner
ana Herbert Boggs, representing the
Guy OF Newark, appeared before the
court of Errors and Appeals today at
trenton. They presented the city's
sue OF the suit to eject the Pennsyl-
Naila railroad from certain lands in
newark. The case has been decided
IN favor of the city by Judge DUNCAN
and jury. The arguments are now
oeihg taken on an appeal by the rail
road company.
Inc streets which the city wants the
pennsylvania railroad to vacate arc
EeW Jersey Railroad avenue, Alling
n1ifeet, HAY alley and Mechanic street.
Tue pennsylvania railroad station.
known as the Market street station, is
on city property. This was brought
out at the first trial
ne case Is long drawn out one
Inc hrst suit OF ejectment was in
sututed by the city in 1911. After a
Ihree months battle, in which the
Pennsylvania road used every effort
TO stay the proceedings, the city was
siNen decision as to two of the
tracks.
In urging the court to sustain the
ueelsion OF Judge DUNCAN in the Els
The City's Defense.
The appellants offered TO prove
that the premises in question had
oeeh assessed by the city of Newark
iof taxes as property of the railroad
company for many years prior to the
commencement of the action
Inc assessment for taxes is not
an act OF the governing body of the
lily OF Newark. 1t could not be con-
stfued to be vacation of Railroad
avenue. The vacation of the street
could only be accomplished in the
manner prescribed by the Legisla-
ture.
1.-THE Board of Assessment OF
Taxes has no power to vacate streets,
and the levying of the tax could not,
therefore, be construed as a vacation
or the street. 1t is claimed therefore,
that the levying of a tax could not
operate to release the dedicated
street, either directly directly or by
Inference. 1t was not an act of the
City of Newark done with the inten-
ton OF releasing the land, and the
burden of the easement of way, and
could not have been so intended; and
the appellant and its predecessors in
the title could not have been mis-
lead
THE reason assigned in this
ground of appeal is, that the court
charged she jury that the adoption
and filing the survey of 1S49 by
Ellis Dunn, did not act as an aban
donment by the plaintiff of any part
of Railroad avenue that might have
heretofore been dedicated not in
cluded within the lines of that sur
yey. 1t is sufficient to say as to this
ground of appeal that If the surveyor
made a mistake arising either from
ignorance of the facts, or ignorance
of the legal rights of the municipal
ity, the survey could not operate as
an abandonment of the dedicated
street, or any part of it, and the
adoption by ordinance of the survey
could not operate as an abandonment
Of q part of Railroad avenue.
1.-THE survey was proved as a part
of the history of the case. and was
not essential to prove the dedication.
Easement Not Affected.
1.-The objection is made to the
charge that length of time that the
defendants had occupied the portion
of the street in question, did not III
any way affect the public easement
over the same
at is the settled law OF this state,
that the statute of limitations does
not bar the right of action OF tne
a highway, or to obtain possession
The charge was made in view OF the
course of decisions in this state anu
without regard to any question Vi
equitable rights. 49, i,r,
..The court submitted to the jury
the question of dedication, ana also
the question of acceptance. Ihere Is
no doubt of the dedication ana tne
court could we'll have held that Tue
proof of dedication was ample lhe
leaving of the question OF acceptance
to the Jury did not harm the defend
ant, because the bringing OF the aG-
tiion was itself an acceptance II
there was any error in the refusaI Oh
the court to direct q verdict, IL Was
the denial of the plaintiffs motion.
1T is not conceded that the appel
liant can set up the defense OF eqult-
able estoppel, and ii does not appear
that such defense was relied cpon III
the trial of the action. Undoupteply'
something was said about the struc-
lures upon the land and the neon
venience which an adverse Verdlct
would be to the railroad company,
but there is nothing in the record
which shows that distinct offer was
made to prove these facts or any
other facts, to sustain the defense OF
estoppel, either by affirmative acts OF
the city, or by silence.
City's Silence No HinderaDce.
"The inaction or silence of the mu-
nicipality cannot raise an estoppel
against the public. The alleged al
firnative acts relied upon by the APP
pellants did not appear to have mis-
led the appellants. The aellants were
bound to know that the city had no
over to permit the obstruction of the
highway.
s'The evidence is ample, that Rail
road avenue was dedicated prior TO
the acquisition of any title by the
railroad company, or the laying OF
tracks, or the erection of any build
ings. The Dunn survey and the Car
ter survey were not essential proof
in the case, except as a part OF the
history of the proceedings relating to
the highway. 1t may be repeated
that no act of the municipality short
of proceedings to vacate the highway
can operate to establish an abandon
ment of the easement of way under
the authorities heretofore cited; ana
it is unnecessary to make any extern
sive reference thereto, or to answer
H. I,.if of ~ auppllnnt in respect