Freeholders of Monmouth County v. Red Bank & Holmdel Turnpike Co.

New Jersey Court of Chancery

Freeholders of Monmouth County v. Red Bank & Holmdel Turnpike Co.

18 N.J. Eq. 91

DecidedOctober 15, 1866

StatusPublished

This text of 18 N.J. Eq. 91 (Freeholders of Monmouth County v. Red Bank & Holmdel Turnpike Co.) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Freeholders of Monmouth County v. Red Bank & Holmdel Turnpike Co., 18 N.J. Eq. 91 (N.J. Ct. App. 1866).

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Opinion

The Chancellor.

The bridge in question belonged to the complainants j they are trustees for the county, and incorporated to represent it; the legal title to all property belonging to the county, is vested in them. This is clearly the object and effect of the act incorporating them. R. S. 182; Nix. Dig

* 109. By the forty-first section of that act they have full power to sell and convey all such property. It is their duty to protect it, and to bring suit for that purpose. If relief can be had in this case, they are the proper parties to seek it.

The charter of the defendants (Acts of 1864, p. 398, § 11,) requires them to construct their road over this bridge; they were, by that provision, clearly entitled to take it. And had the legislation ended here, it would, as seems to me, have authorized them to occupy it without compensation. This bridge belonged to the complainants as trustees for the county. It was held by the public, and for public use. It was not, therefore, within the letter or meaning of either of the provisions of the constitution of the state, which prohibit private property from being taken for publie use. The property of a municipal corporation, not held for public use, might be protected; but not property like this, when taken for the use to which it was dedicated. The legislature could have authorized the defendants to take the public road, including the easement or right of way which the public had acquired over lands of individuals, without further compensation to the owners of the fee. This was held by the Supreme Court, in the case of Wright v. Carter, 3 Dutcher 76, [94]*94and it is understood that this part of the opinion of the Supreme Court was approved by the Court of Errors, although their judgment, as to the right to erect a toll-house, was reversed.

But the legislature did not choose to exercise this prerogative in this case, but directed that the defendants should pay to the owners of lands over which the highway then passed, all damages sustained. Complainants owned this bridge, and a bridge, like a castle, is land ; and for this purpose, that is, to make it land, it is immaterial whether complainants owned the fee of the land in the bed of the river on which it was erected, or only the easement of maintaining a bridge there; it is within this part of the provisions of the act, and the defendants are bound to pay the complainants them damages, or their road does not extend, and is not completed, over the bridge.

The damages may not be of any great amount. I should much incline to the opinion that nominal damages would be sufficient; the public have secured to them the use of the bridge, and the complainants are relieved from the duty of maintaining it. But of this question, I am not the judge. Yet, even if the compensation should be nominal, the complainants are entitled to be freed from the burthen of maintaining the bridge, which would else be upon them, and this is a sufficient substantial damage to entitle them to the interference of this court, if the case, in other respects, warrants it. If an assessment was made, the title to the bridge would not be vested in the defendants so as to enable them to sell or remove it, but only for the purpose of using, repairing, or re-building it, and they could be compelled to keep it in repair. And while they use it as part of their road, the county should be free from that burthen.

The first two continuous miles of the defendants’ road were not completed, according to the provisions of the act, when they erected their toll-gate, and are not now completed. And although the complainants are not aggrieved by the taking of such toll, as they pay none, yet they are aggrieved [95]*95by the use of their property to make up that two miles. And as they have no other efficient remedy to redress this wrong, it is a proper case for the interposition of this court by injunction.

I am of opinion that the complainants are entitled to an injunction, restraining the defendants from using their bridge as part of the turnpike road, and from taking tolls for traveling on the two miles of their road next the Red Bank terminus, and from maintaining a turnpike gate thereon.

Rev., p. 127.

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The Chancellor.

The bridge in question belonged to the complainants j they are trustees for the county, and incorporated to represent it; the legal title to all property belonging to the county, is vested in them. This is clearly the object and effect of the act incorporating them. R. S. 182; Nix. Dig

* 109. By the forty-first section of that act they have full power to sell and convey all such property. It is their duty to protect it, and to bring suit for that purpose. If relief can be had in this case, they are the proper parties to seek it.

The charter of the defendants (Acts of 1864, p. 398, § 11,) requires them to construct their road over this bridge; they were, by that provision, clearly entitled to take it. And had the legislation ended here, it would, as seems to me, have authorized them to occupy it without compensation. This bridge belonged to the complainants as trustees for the county. It was held by the public, and for public use. It was not, therefore, within the letter or meaning of either of the provisions of the constitution of the state, which prohibit private property from being taken for publie use. The property of a municipal corporation, not held for public use, might be protected; but not property like this, when taken for the use to which it was dedicated. The legislature could have authorized the defendants to take the public road, including the easement or right of way which the public had acquired over lands of individuals, without further compensation to the owners of the fee. This was held by the Supreme Court, in the case of Wright v. Carter, 3 Dutcher 76, [94]*94and it is understood that this part of the opinion of the Supreme Court was approved by the Court of Errors, although their judgment, as to the right to erect a toll-house, was reversed.

But the legislature did not choose to exercise this prerogative in this case, but directed that the defendants should pay to the owners of lands over which the highway then passed, all damages sustained. Complainants owned this bridge, and a bridge, like a castle, is land ; and for this purpose, that is, to make it land, it is immaterial whether complainants owned the fee of the land in the bed of the river on which it was erected, or only the easement of maintaining a bridge there; it is within this part of the provisions of the act, and the defendants are bound to pay the complainants them damages, or their road does not extend, and is not completed, over the bridge.

The damages may not be of any great amount. I should much incline to the opinion that nominal damages would be sufficient; the public have secured to them the use of the bridge, and the complainants are relieved from the duty of maintaining it. But of this question, I am not the judge. Yet, even if the compensation should be nominal, the complainants are entitled to be freed from the burthen of maintaining the bridge, which would else be upon them, and this is a sufficient substantial damage to entitle them to the interference of this court, if the case, in other respects, warrants it. If an assessment was made, the title to the bridge would not be vested in the defendants so as to enable them to sell or remove it, but only for the purpose of using, repairing, or re-building it, and they could be compelled to keep it in repair. And while they use it as part of their road, the county should be free from that burthen.

The first two continuous miles of the defendants’ road were not completed, according to the provisions of the act, when they erected their toll-gate, and are not now completed. And although the complainants are not aggrieved by the taking of such toll, as they pay none, yet they are aggrieved [95]*95by the use of their property to make up that two miles. And as they have no other efficient remedy to redress this wrong, it is a proper case for the interposition of this court by injunction.

I am of opinion that the complainants are entitled to an injunction, restraining the defendants from using their bridge as part of the turnpike road, and from taking tolls for traveling on the two miles of their road next the Red Bank terminus, and from maintaining a turnpike gate thereon.

Rev., p. 127.

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18 N.J. Eq. 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeholders-of-monmouth-county-v-red-bank-holmdel-turnpike-co-njch-1866.