Opinion
07-23-1908
ST. COLUMBA'S CHURCH v. NORTH JERSEY ST. RY. CO.
Ralph Lum, for complainant. L. D. Howard Gilmour, for defendant.
Suit by St. Columba's Church against the North Jersey Street Railway Company. On demurrer to the bill. Sustained. Case continuedto await the establishment of the legal right.
Ralph Lum, for complainant.
L. D. Howard Gilmour, for defendant.
EMERY, V. C. (orally). This is a bill filed by the church as the owner of property on Thomas street, in Newark, to compel the defendant, a street railway company, to remove the switch that has been laid in Thomas street by the defendant in connection with its railroad track through this street. The bill is not filed as being in any aspect a bill by a property owner to bring in question the character of the use of the switch in the sense that, although legally laid, it is used in such an unreasonable manner as to create a nuisance; hut the object of the bill is to test the right of the defendant to have the switch there at all for any purpose. It is a bill purely to compel the removal of the switch, and on the general ground that it has been laid in the street without lawful authority. The contention is that the law which gives the railway company the right to lay tracks in public streets has attached conditions to the grant of this right which were not complied with so far as the switch is concerned, and therefore the switch is improperly there. The bill does not allege clearly that the complainant's title extends to the middle of the street or to the lands in the street on which the switch is located. In respect to such ownership the language of the bill is ambiguous. The first paragraph sets out that the complainant is seised of an estate in fee simple in a tract of land in Newark "bounded on Brunswick street, Thomas street, and Pennsylvania avenue." Ordinarily, where a bill is filed in equity to protect a right of the complainant, a distinct and clear allegation is required as to the character of the right to be protected; and, if there is any ambiguity in the statement of the right, the case would ordinarily come under the general rule requiring pleadings to be construed most strictly against the pleader. If complainant owns the title to the middle of the street or title to the lands in the street on which the switch was laid, and complainant relies on such title for relief, then it should be distinctly alleged. It may be that the complainant has not such title, and the case must then be disposed of on the basis that, not having such title to the lands within the street, but being an abutting owner, it had certain rights given to it under the act as such abutter. The bill would then be based on complainant's right, under the act, to require its consent to laying the switch, independent of the ownership of the lands on which the switch is said to be illegally laid. I call counsel's attention to the ambiguous character of the statement of title, as it is a matter which can be reached by amendment if necessary. But I will treat the case in both aspects. That is best for all parties, and I am obliged to do that, because the question of remedy at law and the extent of the equitable jurisdiction in the case arises at the outset of the case by reason of the defendant's demurrer. One distinct ground of demurrer is that the complainant, if there is any injury at all, has a remedy at law.
Treating the case, first, as one where the complainant has, as an abutting owner on Thomas street, title to the center of the street and title to the land on which the switch is laid, in that aspect the hill is filed to compel the removal of the switch. That relief, if the complainant has the right to it, is exactly the same which it would get by an action of ejectment. If the complainant owns the lands in fee on which the switch is laid, subject only to the public easement of a street, and the switch is a structure which is laid in the street without authority, the decisions in our courts of law are clear that an action of ejectment for the possession of the lands occupied by the switch is a remedy. That law was declared to be settled in Wright v. Carter, 27 N. J. Law, 76, 83. There a turnpike company, or company claiming under a charter issued for a turnpike, erected a tollhouse in front of a farmer's land. He brought an action of ejectment against the tenant of the company for occupying land in the highway to which he had title, subject only to the public easement. The court held that the owner had a right to his action of ejectment for the land occupied if the occupation was unlawful, but it was decided that the occupation was lawful, and judgment was directed for defendant. In the case of D., L. & W. Railroad Co. v. Breckenridge, 55 N. J. Eq. 141, 35 Atl. 756, I had the same question of remedy at law in relation to laying an oil pipe under ground across the right of way of the railroad company. The bill was filed to compel the removal of the pipe, because it was laid without lawful right. There were questions relating to the legal right dependent on the construction of deeds, and, the legal title being asserted on one side and denied on the other, it made what was called "unsettled title"; that is, the court in deciding on the legal title would have to construe deeds of a special character set up in the case, as to which there had been no previous construction in a court of law. If I had made such construction, it would have been the first decision in any court in reference to that kind of deed, and would have determined whether the deed made by a landowner to a railroad company for its right of way reserved to him rights of such a character as to enable him to sell to a subsequent purchaser the right to lay pipes across the right of way. I said in that case that the remedy of the railroad company, if they claimed absolute title by their deed, was to bring an action of ejectment for the land occupied by that pipe, because a writ of habere facias possessionemwould deliver to them the land occupied by the pipe and remove the defendant; and therefore I held the case over to allow the railroad company to bring a suit at law. An appeal was taken from that decision, on which it was affirmed for reasons given below. 55 N. J. Eq. 593, 39 Atl. 1113. In the case cited by Mr. Gilmour—Budd v. Camden Horse Railroad Company, 61 N. J. Eq. 543, 48 Atl. 1028—there was also a claim (bat certain poles were erected by the defendant company on the complainant's land. The defendant claimed that they were erected within the street line, and where, under the charter and under the law relating to the erection of poles in the street for the purpose of street cars, they had the right to erect them. Vice Chancellor Grey said: "1 will not try in equity the question whether the poles are on complainant's private property or are within the street line, because, if they are on his private property, an action of ejectment for the occupation of his land by the poles will not only settle the question of right at issue, but the remedy in that action will give exactly the same relief." This decision was also affirmed on appeal for the reasons given below. 63 N. J. Eq. 804, 52 Atl. 1130. So that, if in this case it is a fact that complainant owns title in fee to the lands on which this switch is laid, then the exact remedy it now asks is one that will be given by an action of ejectment, and, if this suit is based on that title, I must hold, under these decisions, that the right must be settled at law, and that before such settlement a court of equity cannot by injunction order the removal of the switch. Independent of title in the street, the abutting owner cannot complain of the impairment of any mere property right by reason of the alleged nuisance, for it has been settled that, unless an abutting owner of land owns the fee to the middle of the street, he cannot maintain a suit to enjoin a nuisance which injures him only in rights enjoyed by him as one of the public. The Attorney General, as representing the public in such case, must file an information, and it makes no difference as to the remedy that the individual would be much more inconvenienced by the nuisance than others. H. B. Anthony Shoe Co. v. West Jersey R. R. Co., 57 N. J. Eq. 607, 617, 42 Atl. 279; Grey v. Greenville & Hudson R. Co., 59 N. J. Eq. 372, 377, 40 Atl. 638.
The other aspect of the case is this: The trolley act of April 21, 1896 (P. L. p. 329), gives the governing body of a municipality the right to grant a franchise for the construction, maintenance, and operating of a street railway upon the highways, and contains this provision, which is a limitation on the power of the governing body: "The permission to construct, maintain, and operate a street railway shall in no case be granted until the consent in writing of the owner or owners of at least one-half the amount in lineal feet of property fronting on the streets through which permission to construct, operate, and maintain the railway is asked shall be filed," etc. This right to be applied to for consent belongs to every owner of property "fronting on the streets," and ownership to the center of the streets is not necessary. If complainant's property fronts on the street, it is entitled to this privilege given by this statute to such property owner. Considered under this aspect of its statutory right to consent, the question is: What is the remedy, if the switch has been constructed without such consent? The complainant's statement in the bill, which for the purposes of the demurrer must be taken as true, is that, when it gave this consent to constructing the railway in Thomas street, it attached to the consent the limitation that it should not apply to the construction of a switch in the street in front of its premises, and this limitation, it is claimed by complainant, was effective to prevent its consent operating as a consent for the construction of the track in Thomas street, unless with that limitation. That being true, there was not a majority in lineal feet for the construction of the track with the switch as constructed, because it required, according to the statement of the bill, complainant's consent to make up the majority in lineal feet of property owners. The defendant, in reference to the character of the right in the property owner which is given by this statute, claims, on the other hand, that the statute did not give to the property owner any authority to affix limitations on its consent, and therefore, if any property owner attempts to affix for himself such conditions, the limitations must be ignored by the governing body and the consent be treated as absolute. At the time of this hearing, I do not think that this question as to the legal effect of affixing limitations or conditions to the consent had been decided in a court of law. The case of Currie v. Atlantic City Railroad Company, 66 N. J. Law, 140, 48 Atl. 615, referred to by Mr. Lum, had expressly reserved any decision on the point. See page 148 of 66 N. J. Law, page 615 of 48 Atl. Mr. Lum since the submission of the case has referred me to a case decided in the Supreme Court, in which Mr. Justice Pitney, now Chancellor Pitney, gave his view that such limitations were effective. Specht v. Central Passenger Ry. Co. (N. J. Sup.) 68 Atl. 785, 790. In this case the consents of the property owners to the construction of the railway in the street stipulated that the railway was to be of a single track. If the present case were one which I concluded to decide at cording to the legal rights, my present view is that I should have to follow the conclusions of a court of law in reference to the nature of the legal right, as a court of equity never undertakes for itself to settle what are legal rights, if the court of law has already done so. I must say that my view had been rather in the direction that, by reason of the provisions of section 1 of theact of 1896, the consent of the property owner had been limited to the construction, maintenance, and operation of the street railway in the street, and that the question of the location of the rails in the street, which, as I was inclined to think, would include also the location of the switches or turnouts in connection with the track, was, by the concluding paragraphs in this section 1, given to common council to be exercised by resolution, either at the time of the ordinance or afterwards. However, that is only a statement of my first impression on reading the act, and I express no opinion on the question, because it relates to a question of legal right as to which the decision of the court of law is controlling.
The situation, then, is this: Taking the limitation affixed by the complainant to its consent to the construction of this railway in Thomas street as a consent which did not include the erection of the switch in question, what is now the complainant's remedy, the common council having actually granted the permission to construct the railway, including the erection of the switch, and the switch being constructed and since used, not only without any subsequent consent of complainant, but, as the bill alleges, against its protest? It appears by the bill that, on the application for the grant by ordinance, there was annexed, as required by section 1 of the statute, a map showing the proposed location of the tracks, and this included the track and the switch located as it was subsequently erected. There was also on the consent of complainant, as appears by the bill, a stipulation on its part that it did not consent to the erection of the switch as shown on the map. In that situation of the papers presented to the common council, the common council concluded that, notwithstanding this limitation, they had the authority to authorize the construction of the railway, including the switch, according to the map, and did by ordinance grant permission to construct the railway in Thomas street in accordance with the plan and diagram or map submitted, showing the switch in front of complainant's property. The company thereupon constructed the railway with the switch so located, and have since operated it. This decision of the governing body of the city, in reference to the character of the consent, was one which in the first instance was a matter for its decision, subject, of course, to review by the proper tribunal. In the cases above referred to—Currie v. Atlantic City Railroad Co. and Specht v. Central Passenger Railway Co.—such decision of the municipal authority as to the validity of the consents was reviewed by a removal of the ordinance itself by certiorari proceedings direct to the municipal body and to which the railway company was made party. In both cases the consents were held invalid and the ordinances set aside. These cases point out the proper and regular method of reviewing the decision of the municipal body. The complainant in the aspect of the case, which I am now considering its statutory right to consent has no property right directly affected by the erection of the switch. It has only a statutory right to control the action of the common council on granting a franchise to construct the track with the switch until it gives its consent. A court of equity ordinarily protects only property rights, and this right of an abutting owner to require his consent as a preliminary to a municipal gran) under the statute is to a certain extent a governmental right, a right to share in a limited way, and by a special method, in the grant of a franchise. The Court of Errors and Appeals in a late case have decided that this right to consent is not an ordinary property right which the abutting owner can dispose of or sell as he chooses, and with regard only to his own interests. In the case of Mont clair Military Academy v. New Jersey Rail way Company, 70 N. J. Law, 229, 57 Atl 1050, a property owner undertook to bargain for his consent with the railroad company, and said, "If you will give me so much, I will give you my consent"; and the company gave a note for the amount agreed on. The railroad company, having gotten the privilege, afterward defended suit on the note The Supreme Court held them liable (65 N. J. Law, 328, 47 Atl. 890), but the Court of Errors and Appeals, Mr. Justice Dixon delivering the opinion, reversed the judgment, holding that the right to consent was not a right which the owner could bargain for and deal with as if it was an ordinary property right belonging to him, but that it was a privilege given by statute to a class of persons having similar and common interests, and there was implied in this grant of the privilege a condition that the owner would exercise it, not for his private or exclusive gain, but on views that concerned all of the class who had the right to consent. In Paterson & S. L. Co. v. Wostbrock (N. J. Ch.) 56 Atl. 698, I had occasion to consider the character of this right of consent, and held that it was not a property right, but only a special statutory limitation on the authority of the municipality. Suppose that in this case there had been no consent at all of the abutting owners, as required by the statute, and a grant had been made; there is no question that the property owner could have enforced the right given to him by the statute. But would not the enforcement be by a certiorari, removing to the Supreme Court the municipal ordinance which made the grant, on the ground that the council had no right to give it? You must notice this feature of the law. This traction law does not provide that the railroad company may not lay the tracks unless they get the consent of the property owners, but it provides that it shall not construct the railway unless a municipal act is performed allowing the construction in the public street, and then, as a restriction on the power ofthe municipality, and as such restriction only, the act provides the grant shall not be made by the municipality, unless the consent of the abutting owner is filed. The property owner has no dealings whatever directly with the railroad company in relation to the grant itself. He has a right to a review of any municipal action granting the franchise which has been taken without the statutory consent that is required to be given to him. From the opinion in Specht v. Central Passenger Ry. Co. (N. J. Sup.) 68 Atl. 789, it would seem that the ordinance cannot be attacked collaterally because of illegality in passing without the requisite consents, and on this view of the conclusive effect of the ordinance, except on direct attack by certiorari, the complainant standing merely on its right of consent (and not on the violation of any property right in the land on which the switch was erected), would have no status to attack the ordinance in this court. I think, therefore, that treating the rights of complainant as based on the statutory privilege requiring consent to be given, and if the consent has been given without the proper permission, a certiorari to remove the ordinance is the remedy at law of the complainant. I may further say that if a certiorari is taken, nnd by a judgment in certiorari the ordinance is set aside, perhaps a writ of restitution might require the removal of the switch. A final judgment in certiorari often requires the restoration to the original condition (Riker v. Mayor, etc., of City of Jersey City, 38 N. J. Law, 225, 227, 20 Am. Rep. 386), and in that' case exactly the same remedy would be applied as is now asked for by injunction. My view, therefore, is that the objection that the remedy in this case is complete at law must be sustained. The direction can be made that this case stand over to await the establishment of the legal right.
Mr. Lum: I will ask that that disposition be made of it.