West Jersey & Seashore Railroad v. Ocean City Railroad , 61 N.J.L. 506 ( 1898 )

The opinion of the court was delivered by

Garrison, J.

This certiorari brings up the order made-by a justice of this court appointing commissioners to assess the damages to be paid to the prosecutor for crossing and taking certain of its lands, The proceeding is under the General Railroad law. Gen. Stat., p. 2641. It was objected on the part of the landowner, the West Jersey and Seashore Railroad Company, that the appointment should not be made because the land described in the notice was a public highway, along which no lawful authority to construct a railroad existed; also because the applicant had no municipal authority to occupy, longitudinally, the said highway, and that no-effort had been made to purchase the land or rights of the-prosecutor. This last point was not borne out by the proofs and is not made a contention in the brief of counsel. The-other objections rest upon a misconception of the effect of the proceeding and of the extent of the jurisdiction involved. The proceeding, at its completion, simply names a sum of money as the equivalent of what the prosecutor will lose if the applicant takes what is described in his notice. It does not say that he may take it; it affirms nothing; it simply assesses damages for a hypothetical injury.

The entire subject appears to be settled by the reasoning of Chief Justice Beasley in Delaware, Lackawanna and Western Railroad Co. v. Hudson, 9 Vroom 17, and by the opinion of the Court of Errors in the same cause. Id. 548.

To the same effect are National Railway Co. v. Easton and Amboy Railroad Co., 7 Vroom 181, and Pennsylvania Railroad Co. v. National Docks Co., 28 Id. 86.

The writ will be dismissed, with costs.