City of Elizabeth v. Court of Common Pleas , 49 N.J.L. 626 ( 1887 )

The opinion of the court was delivered by

Dixon, J.

In order to justify the allowance of a writ of mandamus, the legal right of the petitioner to the relief which he seeks must be clear. High on Ex. Rem., § 10.

We do not think that the claim made by the petitioner is of this character. Its object is to open a public road over what is now private property, in the city of Elizabeth, and the accomplishment of this by an order of the Court of Common Pleas of Essex county. It is at least doubtful whether-any such power resides in that court.

The charter of the city of Elizabeth, approved March 13th, 1855 (Pamph. L., p. 217), gave to the city council authority to lay out and open any street, road or highway in any part of the city, and to cause any street, road, highway or alley already laid out in any part of the city to be vacated or-opened by proceedings therein set forth (section 32), and also enacted (section 36) that no street, road, highway or alley thereafter to be laid out or opened in said city should be-recognized, considered or treated as a public street, road, highway or alley, unless the same were laid out and assessed under the direction of the said city council in manner aforesaid.

When this charter was passed, the road now desired had been laid out, but not opened, and this enactment seems to have been intended to terminate all existing authority to open the same, and to vest the power of opening it in the city council exclusively, to be exercised in the mode pointed out in the charter. The jurisdiction of the Essex Common Pleas over the opening of roads in the city of Elizabeth was never afterwards revived; the city became a part of the new county of Union in 1857. Pamph. L., p. 244.

Without attempting to impair the reasons given by the Common Pleas for its refusal to order the recording of the surveyors’ return, we deem the foregoing sufficient ground for denying the writ of mandamus.