O'Neill v. Board of Chosen Freeholders , 41 N.J.L. 161 ( 1879 )

The opinion of the court was delivered by

Beasley, Chief Justice.

This suit was brought to recover a sum of money that the plaintiffs allege was awarded to them by commissioners, for lands which they aver were taken from them by condemnation for public use by the defendant, by force of an act of the legislature passed for that purpose. The defence set up was that the proceedings to condemn the lands referred to, being inchoate, were given up and abandoned before they ripened into a legal obligation. "Whether such contention is well founded is the proposition to be decided.

The statute which has given rise to this dispute was enacted on the 18th of March,*1874, and it declares “that it shall be lawful for the board of chosen freeholders of Hudson county to take, by condemnation for public use, all that portion of Snake Hill not now owned by the said county of Hudson.” In the second section it directs a survey of these lands to be made, and provides for the appointment of three commissioners “to condemn and appraise said lands,” who are to meet upon a defined notice, and who are to act under oath, and their report is to be filed, within ten days from the time of the making of their appraisement, in the clerk’s office of the county of Hudson. A further provision is, in the statutory language, that “on payment, or tender of payment, of the amount awarded as hereinafter provided, the said board of chosen freeholders is hereby empowered to enter upon and take possession of the said lands for the use of the inhabitants of the county of Hudson.” An appeal is then given to either party, to, the Circuit Court, “ at hny time within sixty days after the filing of the said report by the said commissioners.”

Under this authority, commissioners were regularly appointed to assess the damages that would be sustained by the plaintiffs by the taking of their land, and a report in that respect, made by these officers, was duly filed in the clerk’s office of the county of Hudson. The defendant'in error claims that prior to the expiration of the.time given by the statute for an appeal from the finding of the commissioners, it abandoned the proceedings to condemn the land. To this contention the plaintiffs make two answers. First, that the legal right to abandon the proceedings, at the time in question, did not exist; and, in the second place, that there was, in point of fact, no abandonment.

The first point I think untenable, both on reason and authority. As much as fourteen years ago, in Matter of Water Commissioners of Jersey City, 2 Vroom 72, a rule was adopted by the Supreme Court that is entirely contradictory of this particular contention. It is true that the facts of the case referred to were somewhat different from those now in controversy, but the principle on which the determination of the court was founded is as applicable on this occasion as in the former instance. That principle in substance was this: that whenever land is sought to be taken for a public purpose, the public authorities, in- the absence of any statutory provision to the contrary, have a reasonable time given them, after the ascertainment of the expense of the scheme, to decide whether to accept or refuse the land at the price fixed. On every account, that rule commends itself to my judgment. With respect to the land owner, the procedure is fair and just: it calls for a reasonable valuation of his land, and if the public reject it at such estimation, he suffers, in general, no detriment; and if, in any exceptional case, any injury is done to him, he is entitled to reparation. On the other side, the rule in question is a necessity in view of the rational conduct of public affairs: the question whether a projected improvement is wise or unwise, expedient or inexpedient, cannot be answered by any one who is ignorant of the expense that it involves, and therefore to require public agents, in handling these matters, to disregard this plain dictate of common sense, would be altogether absurd. A man of prudence relinquishes a project when he finds the cost is likely to exceed, in a large measure, its benefit; it would seem intolerably unreasonable to require the agent of the public to pursue the opposite course. In construing any statute authorizing one of these undertakings, every reasonable intendment should be against reading it in a sense that would put the public in this false position. The legal effect of such acts should be held to be that they compel the land owner to offer the public the required land at the ascertained price, and that when such price has been finally ascertained, the public has a reasonable time within which to make an election either to accept or reject the offer. Such was the ground of decision in the case, above cited, of the water commissioners of Jersey City. That decision was approved of and acted on in the ease of Mabon v. Halsted, Director, &c., 10 Vroom 640, and it is cited, among many other authorities, as correctly stating the legal rule, by Judge Dillon in his work on Municipal Corporations. 2 Dillon on Mun. Corp., § 473, note. The doctrine as settled has the great preponderance of judicial opinio^ in its favor, and it should not now be disturbed or called in question. This first contention cannot prevail.

But, in the next place, it is insisted that, as a matter of fact, the defendent did not reject the proposed condemnation before the time for an appeal had run out.

What was done was this: the report of the commissioners having been filed, afterwards, and before the expiration of the time for appealing, a motion was made, at a regular meeting of the board of freeholders, “to accept the purchase of lands at Snake Hill, as condemned,” and such motion was lost. It is now said that this vote was not a rejection of the scheme of condemnation. But I can see no solidity in the reasons given in support of this position. One reason urged was, that the right to withdraw was lost by the filing of the award of the commissioners by the counsel of, the board of freeholders; but it is clear such act cannot conclude the rights of the public: the statute makes it the duty of the commissioners-to file the report in the clerk’s office, and the counsel, in putting the report on file, must be regarded as their agent, and not, in that respect, as acting for the county. Besides, the counsel in question had no authority either to accept or to reject the award of the commissioners, so that his act, however construed, cannot affect the rights of the defendant.

But again, it is insisted that the vote negativing the motion to accept was neither a withdrawal or acceptance. But this is a refinement that should not form the basis of judicial action. T have already likened the ascertainment of the value of the land, by the exercise of the power of eminent domain, to putting the parties in the situation of seller and buyer: the former offers his land to the latter at a fixed sum. Such being the position of the land owner and the public, as I think substantially it is, a refusal by the public at the price fixed would seem to be a finality. The question is whether the county will take the land at the ascertained sum, and the answer is,' no; and, in my opinion, that answer was not only definite, but it was final, so that the land owner had the right to consider the proceedings concluded, and the entire force of the act spent. He was in no danger of a second assessment, for the plain reason that the act did not authorize such a proceeding. This is the view taken of the legal effect of-this vote by the Supreme Court in the case of Mabon v. Halsted, already -cited.

Regarding the vote above stated as conclusive of the proceedings under the statute, and that such conclusion was an exhaustion of the statutory power to acquire the lands in question, it is obvious that the subsequent action of the freeholders can neither vest the county with the title of the lands in question nor the plaintiffs with the right to sue for their value. The act gave the public authorities the power to acquire this land in a particular mode; that mode was rejected. What was subsequently done by them, either by voting or taking .possession of the premises, cannot affect the present suit.

The judgment should be affirmed. ■

For affirmance — The Chancellor, Chief Justice, Dalrimple, Depue, Dixon, Knapp, Scudder, Van Syckel,. Woodhull, Dodd, Green, Lathrop, Wales. 13. For reversal — None.