Opinion
07-11-1901
SCHARK et al. v. CITY OF CAMDEN et al.
s. h. Richards and Thomas e. French, for complainants. E. G. C. Bleakly, for defendants.
(Syllabus by the Court.)
Bill by Antonia Scharr and others against the city of Camden and others. Dismissed.
This matter ought to be disposed of now. It has never been presented formally for hearing before, but has been pending a good while, and it appears to have interfered with a public improvement that was partly finished, and to have left a gap in a city sidewalk which is very close to being a public nuisance in its present condition. The complainant is the owner of a lot in the city of Camden, situate at the southeast corner of Cooper avenue and Hayes avenue, as those avenues were formerly designated, which is 100 feet in depth on Hayes avenue. There is a dwelling house on the lot, and at the rear end of it in the cellar, a furnace and bake oven, which stand adjacent to the line of Hayes avenue; the furnace being next to the avenue. The bake oven is immediately next to the furnace, and extends around it, reaching to the wall of the house on the Hayes avenue side. The city officers, some weeks before the bill was filed, had undertaken the construction of the sidewalk on Hayes avenue under an ordinance passed by the town of Stockton in 1895, be fore its consolidation with the city of Camden. They were working northwardly along Hayes avenue, and had finished the sidewalk across the 40 feet of the front of the complainant's two rear lots on Hayes avenue, and 20 feet additional of the sidewalk of the corner lot now in question, and were proceeding to finish the remaining 75 feet, to join the 5 feet return from Cooper avenue, when the complainant filed her bill in this cause. The complainant seeks to restrain the further construction of the sidewalk along her lot at thecorner of Cooper and Hayes avenues. She alleges that the ordinance under which the work is being done is void, because it refers to a map annexed, indicating the proposed grade, which map was not in fact annexed to the ordinance, though it is shown to have been kept in a safe with other like papers. She also insists that the map is uncertain and unintelligible, as indicating the grade of the sidewalk on Hayes avenue; that the lowering of the grade as proposed will destroy her coal vault under the sidewalk, and will also expose the wall of her oven and cause it to lose heat, so that it would not do the work required of it, and would also injure her driveway to and from her barn on her rear lot, making it difficult of access, and would thus cause her to suffer irreparable injury. She charges that the proposed street construction requires the consent of a majority of the owners, etc., under section 73 of the road act (3 Gen. St. p. 2821), and she prays an injunction restraining the city authorities from continuing the work of constructing the sidewalk on Hayes avenue along her lot This diagram will more clearly indicate the condition of the locality at the time the bill was filed.
s. h. Richards and Thomas e. French, for complainants.
E. G. C. Bleakly, for defendants.
GREY, V. C. (after stating the facts). The questions raised in this cause are largely criticisms of the action of the city authorities in grading and constructing a sidewalk along the complainant's lot, situate at the southeast corner of Cooper and Hayes avenues, in the city of Camden. A considerable quantity of testimony has been taken in order to show the right of the complainant to relief in this court and on the part of the defendant to show that the complainant has no equitable standing, as her remedy at law is full and adequate. There is, however, a preliminary matter which in my view makes it unnecessary to examine with minuteness the questions raised challenging the efficacy of the ordinance under which the city authorities have proceeded, and attacking their action in constructing the sidewalk now in dispute. Without elaborate discussion, I may say that my view of those questions upon the whole matter is that the complainant has not exhibited a case in which this court should interfere. The cause should be controlled by the showing, by all of the proofs, that before and at the time when the bill was filed the complainant had so acted that she has now no equitable right to stop the progress of a public work, the completion of which has become necessary to the public safety, even if it may result in damages to her. She denies the validity of the ordinance of 1895 establishing the grade in dispute on Hayes avenue, but her own testimony shows that a considerable time before the filing of her bill of complaint she had recognized the grade established by that ordinance, as applicable to the lot in question, at the southeast corner of Cooper and Hayes avenues, by grading and paving with brick her Cooper avenue front sidewalk, with a return of five feet on the Hayes avenue sidewalk. In order to complete the relation of her house to this grade, she rearranged her front steps. This was several years before she filed her bill of complaint She also testifies that, shortly before the filing of her bill, she told the city's foreman, in charge of the work of grading the Hayes avenue sidewalk, that it would be all right for him to take the dirt away from the 40 feet of front of her Hayes avenue lots, immediately adjoining the locus in quo; that is, she gave him permission to grade that sidewalk. At this time she testifies that the sidewalks of other properties on Hayes avenue had been graded. It was otherwise proven that, besides the grading of the sidewalk of the complainant's lots fronting for a distance of 40 feet on Hayes avenue, the city had, without objection from her, still further completed the sidewalk for 20 feet more on Hayes avenue alongside the complainant's corner lot. The evidence also shows that, before the bill was filed, the curb had been set at the city grade along the whole Hayes avenue front of the complainant's property. All this work was begun and carried on in the most public manner by a number of workmen, using horses and carts, who were seen at work by the complainant, who talked about it at the time it was being done. The cityhas expended several hundred dollars on this improvement. The complainant saw and knew of this action and expenditure on her own and other properties from its beginning, and took no steps to question it until the grading approached the place where the sidewalk adjoins the coal vault and bake oven, and then she says she did object, because she thought to take away the support of the sidewalk might cause the bake oven to drop out, and shortly after filed her bill in this cause. The result is the sidewalk now presents several breaks in its level which make it dangerous to the public. Within the unfinished 75 feet is included the space under which the complainant has built her coal vault This structure is inclosed by a stone arch, which, irrespective of the proposed lowering of the grade, projected above the level of the sidewalk a few inches, and is now even more prominent. Within a short time a woman tripped over the projection of this coalvault arch above the sidewalk, fell, and broke her arm. Continued delay in finishing the work may lead to like mishaps.
So far as any injury because of the change of grade is threatened to the use of the complainant's barn, it is enough to say that the barn is on one of the rear lots fronting on Hayes avenue, and before the bill was filed the grading and construction of the sidewalk in front of those lots had been done, so that there is no occasion for enjoining that construction. No restoration of the grade is asked for by the bill, nor should any mandatory decree of that character be made, because it plainly appears that no irreparable injury had been done to the approach to the bam. Since the lowering of the grade of the sidewalk, the way into the barn has been used occasionally. It can readily be made conveniently accessible by a corresponding lowering of the approach on the complainant's lot. If that be any damage to the complainant, it is fully remediable at law. The evidence shows that the complainant Rubsamon was a tenant of the bakery, and that he has moved out and has no further interest in the premises. Considering the attitude of the complainant in accepting the city grade on her Cooper avenue front and its return on Hayes avenue for 5 feet, and her consent to the construction of the sidewalk at grade in front of her property on Hayes avenue for nearly 60 feet, before she asked this court to interfere, and the fact that the wrong she fears (the injury to her bake oven) is largely conjectural in its nature, it would be inequitable to allow her now to interpose a bar to the finishing of the city's work. An injunction against the completion of this sidewalk would tend to the injury of the public in the use of the highway, and the damage probably resulting therefrom may be far beyond any inconvenience which the complainant may suffer by being denied an equitable remedy. For such wrongs as she alleges, if she has any remedy at all, she may have an adequate one in the law courts. The complainants' bill should be dismissed, with costs.