Erisman v. Board of Chosen Freeholders , 64 N.J.L. 516 ( 1900 )

The opinion of the court was delivered by

Collins, J.

This writ removes an assessment on land of •the prosecutrix, made by commissioners and confirmed by the •Circuit Court of the county of Burlington, for the improvement of a publie road in said county, running from Columtbus to Chambers’ Corner. The only authority asserted for improvement or assessment is the act entitled “An act to provide for the permanent improvement of public roads of this -state,” approved March 22d, 1895. Pamph. L., p. 424. Section 13 of that act declares that on confirmation of the Circuit Court the report of the commissioners shall be final and conclusive. The defendants therefore challenge our right of review. It is sufficient to sustain such right in this case that the defect alleged is fundamental, avoiding jurisdiction to make .any assessment upon the land assessed. Benedictine Sisters v. Elizabeth, 21 Vroom 347. The act itself recognizes review by -certiorari and limits the time within which after confirmation -a writ may be allowed. The prosecutrix purchased her writ ■within that time.

Thé defect alleged is that the land on which the challenged ■assessment has been -imposed is outside the territorial range of assessment permitted by the act, namely, “ lands and real ■estate'fronting or bordering on the road or section thereof improved.” The land of the prosecutrix that has been assessed •is a farm'of one hundred and ninety-six acres, bordering upon the public road leading from Columbus to Jobstown. A lane .or private road, obstructed by gates, runs through this farm .and tire adjoining one of a Mr. Harvey to the public road that has been improved. The two public- roads are more -than a mile apart, and the land of the prosecutrix comes at .no point nearer to the one improved than half a mile. Her farm buildings are three-quarters of a mile away and face towards the lane and not towards the improved road.

The defendants argue that the words “fronting” and •“ bordering on ” in the statute are not synonymous in meaning, and that their disjunctive use makes assessable any land that fronts a road improved, although it may not border on it, and they claim that the farm of the prosecutrix fronts the road in question, because it can be reached by means of the lane-running through Mr. Harvey’s farm. This claim .of frontage-is scarcely plausible and the argument derived therefrom is eutirely unsound. If the phraseology quoted is not merely redundant the difference intended is not that suggested. It seems to me that in the legislative mind it was assumed that some land might border on a given road or section, although its frontage, in a narrow sense, was elsewhere—perhaps upon across road-—and to make sure that such land should be assessable for benefits arising from the improvement, phraseology apt to include it was adopted. Be that as it may, it is quileplain that the interpretation contended for by the defendants-is inadmissible. By section 8 of the act the jurisdictional petition required must be signed “by the owners of at least-two-thirds either in lineal feet or in area of the lands and ■real estate fronting or bordering on” the road or section of road to be improved, and it is declared that in the estimate-of area there shall be taken “ all the lands of every owner which are assessed for taxes in said county and which lie-together in any farm, tract or lot of which a part has a frontage on said road or section of road.”

The inherent ambiguity of the word “front’’and its derivatives is resolved by this self-interpreting statute. To come' within its provisions land must adjoin at- some point of the-road or section of road involved.

The assessment against the prosecutrix is set aside, with-costs.