McCarty v. Brick

11 N.J.L. 27
CourtSupreme Court of New Jersey
DecidedSeptember 15, 1829
StatusPublished
Cited by1 cases

This text of 11 N.J.L. 27 (McCarty v. Brick) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarty v. Brick, 11 N.J.L. 27 (N.J. 1829).

Opinion

The Chief Justice delivered the opinion of the court.

Under an act of the legislature, passed the 11th day - •of February, 1813, for the improvement of the meadows, marshes and swamps, lying within certain prescribed bounds, in the Upper Township of the county of Cape May, An embankment, with other necessary water-works, was made, and has been from time to time maintained and repaired. The expenses of the erection of the bank and works, were defrayed, as directed in the act, by an assessment on the owners and possessors. For the subsequent repairs, assessments have been, from time to time, made and collected by the managers. In the year 1827, they made the seventeenth, and in the year 1828, the eighteenth. [36]*36assessment. Each was for fifty cents an acre; and Samuel McCarty, the plaintiff in certiorari, was charged as an owner, as he had been on every assessment from the commencement of the enterprise. Nearly the whole of the seventeenth assessment, he paid. The residue, and the whole of the eighteenth, he refused. Under a provision in the act, authorizing, if any of the owners or possessors neglect or refuse to pay the sum assessed, the managers to recover the same in an action of debt, in any court having, cognizance thereof, Joshua Brick and Joseph Sutton, the managers, instituted a suit and obtained judgment in the court for the trial of small causes, for the sums unpaid, with costs. McCarty appealed. On the hearing of the appeal, the assessments with the return and plats, or maps, whereby “they were said to have been made, among other proofs, were in evidence; and judgment was again given in favor of the managers. This judgment of the Court of Common Pleas, *28] McCarty seeks to reverse, on the *ground that the assessments, for several reasons, were illegal. In the course of the argument, some remarks were made on the refusal of the court to receive the evidence offered by the appellant to shew that he was not benefitted by the bank. I do not propose, however, separately to examine this point, because, as I understood, it was as a distinct reason for reversal expressly, a.nd I think properly, waived; and was urged only to illustrate and strengthen the other grounds of argument of the plaintiff’s counsel. The assessments are impeached, in the first place, because of the alleged insufficiency and invalidity of the return and maps of each owner or possessor’s share of the marsh and meadow, whereby the managers professed to have made, and were required to make, the assessments ; and in the second place, because the assessments do not conform either to the return or maps, if proper, or to the provisions of the act.

1. It is objected that the surveyor does not appear, and is not shewn, either by the documents produced, or by [37]*37extrinsic evidence, to have fulfilled, in divers respects, the duties required by the legislature. In examining the specified deficiencies, it will be necessary at the outset to ascertain the services ho was to perform. They are prescribed in the second section of the act, in the following terms : “It shall be the duty of the managers chosen as aforesaid, to employ a well known and respectable surveyor in said township, who shall forthwith, upon the receipt of this act, proceed to measure and determine each owner or possessor’s number of acres of marsh and meadow, and make a regular return plat and drawing ot the same, which shall bo given to the said managers, and shall remain in their possession during tlieir .continuance in office; and upon the expiration of such time, tobe delivered to their successors in office; such return of the so-to-be appointed surveyor, shall be received as evidence of each person’s possessions, and all assessments and votes shall be made thereby.” Soon after the first managers were chosen, they employed a surveyor, Nicholas Willets, who prepared and delivered to them a book of maps and descriptions, which furnished the professed guide in the first and all subsequent assessments, and was produced in evidence on the trial of this cause. The conformity of this book or return, to the directions of the act, is now i,o be the subject of examination. It is *said thero is no proof on this [*29 book, or return, or in any other way that the surveyor measured and determined each owner’s or possessor’s number of acres, or in any wise determined or adjudicated ■either the quantity of land, or the persons who were to be benefited by the bank, and therefore to be included in the assessments and subjected to the charges of the undertaking. Neither the time nor the source of this exception, can serve to commend it, although most certainly neither should give it, any prejudice. Samuel McCarty was an original, .and appears to have been an active, member of the company. Fie partook in the call of one of the earliest meetings. He attended and voted at almost all occasions. He [38]*38has been, prior to the present controversy, in common with the other owners, sixteen times assessed, and has paid from time to time his assessments, sometimes in money, and' sometimes in labor. So far as appears in the evidence and documents before us, the members of the company, however they may have differed as to the policy or expediency of’ particular repairs or improvements, have, without question, acquiesced in the fairness, fullness, and accuracy, of the maps and surveys, and the propriety of the respective assessments antecedent to the present controversy. These-facts are chiefly gathered from the books kept under the-requisition of the tenth section of the act, which are therein-directed to be laid before the company at their annual meetings, as by the entries seemd have been repeatedly,.if not-uniformly, done; and which are, therefore, for purposes of this kind, as respects the members of the company, a legitimate source of information.

The book, or return, is in the' hand-writing of Nicholas Willets, the surveyor. It is' thus entitled, “ Surveys of the meadows about to be banked on East and Dennis Greek,, made in June, A. D. 1813, by Nicholas Willets.”

And at the close is the following entry : “ Done at the-immediate request of the managers in June,- A. D. 1813, by

Nicholas Willets.”

The maps and descriptions are, in general, on separate- and distinct pages of the book in which they are collected. At the top of the page is written the name of the owner. As on page 7, "Thomas Broadrick’s Marsh.” Below is-found a map or plat upon which are figures, after the man-*30]' ner of surveyors, to denote *the quantity. Beneath-is. a description in writing, giving the place of beginning, the-courses and distances, anct frequently the remarkable-points or places of natural or artificial boundary, and setting-forth the quantity usually in figures, but in two instances at least, in words at length. In some instances, where the-tracts of two, or sometimes three, owners lay adjoining,. [39]*39they are exhibited on the same map, but designated and divided on the face of the map, as well as in the subjoined descriptions.

In the work thus performed by the surveyor, I cannot discern the alleged deficiency; but, on the contrary, there appears to me a substantial, and for all valuable or desirable purposes, a full compliance with the injunctions of the act. The surveyor says these are surveys made by him, and at the immediate request of the managers, in June, 1813, and he sets forth the quantity of each. It is true, he does not, adopting the precise language of the act, say, that he has measured and determined each owner’s or possessor’s number of acres ; but he says he made surveys of the meadows, and he states the quantity and result of his surveys.

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Bluebook (online)
11 N.J.L. 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarty-v-brick-nj-1829.