Benton v. City of Elizabeth , 32 Vroom 411 ( 1898 )

The opinion of the court was delivered by

Dixon, J.

The ordinance attacked, by this writ of certiorari purports to grant to the National Transit Company the privilege of opening and crossing certain streets in the city of Elizabeth, and. of laying and maintaining a pipe therein for the transportation of oil, and to regulate the exercise of the privilege.

In considering the case we must assume that the National Transit Company has corporate power to 'acquire and exercise the right of laying pipes for the transportation of oil in this state, because the prosecutors have raised no question whatever with respect to its capacity in the premises. It is said that the company is a Pennsylvania corporation, but, under our statute (Pamph. L. 1896, p. 277, §§ 95, 97), corporations of sister or foreign states may, by certain proceedings therein mentioned, obtain legal authority to acquire and hold real estate and transact their business in New Jersey. Hence it may easily be that this company possesses all requisite power, and if the prosecutors intended to challenge the power they should have declared that purpose in the reasons filed.

The evidence shows, sufficiently at least for present purposes, that the company has purchased such a right in the land mentioned in the ordinance as would entitle it to lay pipes therein' for the transportation of oil, if the land were not subject to the easement of a public street. The Central Railroad Company, which owns the fee of the land, has granted that right to the transit company, and although the grantor could not lawfully use the land for such a purpose, yet that would arise only from defect of' power in the railroad company, and not from any illegality in the appropriation of the land to such a use. Being possessed of the fee-simple, the railroad company could grant whatever rights in the land an individual owner of the fee' could grant, provided the company did not impair' its power to perform its public duties, and no such impairment is shown. But even if the validity of the grant were, in the abstract, questionable for want of corporate power in either party, yet the prosecutors, who are only private persons having no interest in the land, cannot dispute it. Leazure v. Hillegas, 7 Serg. & R. 313; Fritts v. Palmer, 132 U. S. 282; De Camp v. Dobbins, 4 Stew. Eq. 671, 691.

The point next to be considered relates to the power of the council to pass the ordinance. Its authority resides in the thirty-first section of the city charter' (Pamph. L. 1863, p. 109), which enables the council to make and establish ordinances, rules, regulations and by-laws prescribing the manner in which corporation's or persons shall exercise any privilege granted to them in the use of any street in said city, or in digging up said street for the purpose of laying down pipes, or any other purpose whatever, and' regulating the keeping and conveying of gunpowder, campliene, spirit-gas and other dangerous materials.

The authority thus delegated seems to us sufficient to sustain the present ordinance.

Against this view it is urged, first, that the enactment does not empower the council to grant privileges in the use of the streets, but only to regulate the exercise of privileges already possessed.

In a sense this is true, but in the sense in which it is pertinent to this case it is not true. A party invoking the action of the council must indeed have a right or privilege to be exercised in a street, but the right is -imperfect until the council indicates in what manner it may be exercised. The pre-existing right is one to be exercised only as the council permits, and, within the meaning of this section, the council grants the privilege of exercising the right in the particular manner designated. So, in the present case, the transit’ company’s right to use the land preceded the ordinance, but the enjoyment of that right depended upon the council’s defining the mode in which the street might be temporarily interfered with and granting the privilege of such interference. The grant of such a privilege is just what this section of the city charter contemplates.

It is further urged that this power of the council relates only to the use of streets as streets, and not to the private use of the land within the street lines by the owners thereof. This construction, we think, would be too narrow. If the owner of land traversed by a street desired to lay a water-pipe or gas-pipe or telephone-wire across the street-, beneath its surface, from his house to his stable, or if an abutting owner desired to build a vault or coal-chute under his sidewalk, we think this provision of the charter authorizes the council to grant him the privilege of doing so by prescribing the method in which it may be done. The object of the law is to enable the council to regulate the exercise both of private rights and of special franchises in the streets, in order to secure, as far as practicable, the full enjoyment of the general public easement.

But it is insisted the laying of pipes in accordance with this ordinance is not within the private right of ownership of the land. Clearly, the private owner could so use the land if it were not subject to the public easement; and the existence of the highway does not deprive the owner of the right to use the land in any mode consistent with the public easement. Allen v. City of Boston, 159 Mass. 324; Roebling v. Trenton Passenger Railway Co., 29 Vroom 666, 670. The use now contemplated will not interfere with the public easement. The tracks of the Long Branch division of the Central Railroad Company are laid upon the land across the streets mentioned in the ordinance, and the pipe of the transit company is to be placed parallel with and near to the tracks and at least two and a half feet below the surface of the ground. Manifestly in this position the pipe cannot at all obstruct the enjoyment of the public right. The temporary inconvenience caused by the digging of the trench is one of the things which the council has power to regulate and permit, and no fault can be found with the reasonableness of the ordinance in this particular.

The prosecutors further contend that the decisions in Montgomery v. Trenton, 7 Vroom 79; Domestic Telegraph Co. v. Newark, 20 Id. 344, and Hutchinson v. Board of Health, 12 Stew. Eq. 569, in this state, and other decisions to like effect elsewhere, are in conflict with the views we have expressed.

We do not so understand them. The basis of some of these decisions is merely that, under a proper construction of the statute, the legislature had not delegated to the municipality the power to sanction the substantial encroachment upon the public easement there attempted; and in others there was also the element that the thing attempted involved the use of the private property of one .person for the private purposes of another. In none of them was it held that, under statutory authority like that before us, a municipality might not permit an owner to use his land, which was subject to a-public easement, in any lawful mode consistent with the enjoyment of the public right. The object and effect of the present ordinance do not go beyond such a permission. Should the location of the pipe become hereafter inconsistent with the public easement, this ordinance will not prevent its removal.

Finally, the prosecutors insist that the transportation of oil through a pipe thus laid in the populous portion of a city is, per se, a nuisance, and specially injurious to the persons living in the neighborhood, and hence cannot in any degree be favored by municipal action. On this point it is enough-to say that the testimony does not sustain the allegation of fact. The existence of the pipe line may perhaps enhance; the rates of insurance upon property in the vicinity, but that result would follow from the presence of various other businesses which would nevertheless be entirely legal. It does not constitute reason enough for the suppression of an occupation otherwise lawful. Butler v. Rogers, 1 Stock. 487; Duncan v. Hayes, 7 C. E. Gr. 25; Courter v. Newark, 25 Vroom 325 ; Rhodes v. Dunbar, 57 Pa. St. 274.

The ordinance is within the power delegated to the council, and must be affirmed, with costs.