Opinion
06-01-1894
INHABITANTS OF THE CITY OF TRENTON v. McQUADE.
Edwin Robert Walker, for complainant. William M. Lanning, for defendant.
Bill by the inhabitants of the city of Trenton to enjoin John McQuade from tearing up a sidewalk and curbing laid in front of his premises. Preliminary injunction granted
Edwin Robert Walker, for complainant. William M. Lanning, for defendant.
The bill in this case shows that the common council of the city of Trenton and the Pennsylvania Railroad Company entered into an agreement by which certain streets were to be altered, and other improvements made, for the benefit and convenience of the inhabitants of the city or of the company. The common council of the city passed an ordinance to change the grade of a portion of Lamberton and Ferry streets and to widen Bridge street between Union and Warren streets, also to vacate a portion of Bridge street, which ordinance was duly approved on February 21, 1891. The said ordinance was passed by the procurement of said company, upon the express provision that the said company should, at its own expense, lay out, grade, curb, pave, and dedicate a new street, 30 feet wide, between Warren and Fair streets, and should widen Bridge street between Union and Warren streets, and should dedicate the part so widened to the city of Trenton, and should provide means to carry off all the surface water, whose then present course would be diverted or changed by the aforesaid alterations and changes in said streets, and the said company agreed to indemnify the said city against any losses which might be incurred to property affected or by the said changes of grade. All the said changes of grade so contemplated were made and effected by the company, except, according to the insistment of the defendant, the successful carrying off of all surplus water. The defendant, John McQuade, owns a lot on said Ferry street, on which is his dwelling house, opposite to which the grade was changed in making the said improvements, and chiefly in completing a convenient embankment in making an access to a bridge over the railroad. After such changes and improvements had all been made and completed, and after means had been provided for carrying off all surface water (this being denied by the defendant) whose then present course was diverted or changed by the aforesaid alterations in said streets, the city authorities directed the street to be relaid and recurbed in front of said McQuade's dwelling, which was done. While the city authorities were employed in making the said prescribed changes, McQuade interfered, and molested them, and, after the said pavement was relaid and the said curbing reset according to the prescribed grade, the said McQuade deliberately tore up, destroyed, and removed the said pavement and the said curbing, so that the said pavement was and is in a very bad condition. From his conduct and declarations it is not only manifest that he intends to continue resisting the city authorities, but again to undo and destroy whatever they may undertake to do or accomplish in perfecting the improvements and changes in the street opposite his dwelling. Hence, an injunction has been asked for to restrain him from further interference with the authorities. The defendant by his answer admits the making of all said improvements, and it appears that they were all made in strict compliance with the said ordinance and the undertaking and promise of the said company. But the defendant Insists that such changes and alleged improvements have so diverted the water and increased the flow as to cause damage to his said lot and premises. The excuse of the defendant for his violent interference with the city authorities, and for his disturbance and destruction of the improvements which it made, is that, owning the said premises prior to the making of said changes and alleged improvements on behalf of the city, he erected his dwelling, house thereon, and made other improvements in accordance with the grades of the streets of the said city, as they had then been fixed or determined upon by the city authorities, and that the grade so fixed carried the water from his premises; that, in making such changes and improvements, the company constructed an elevated bridge for the use of the inhabitants of the city, and, that said bridge might be accessible, it was necessary to build approaches thereto by filling in Lamberton street, and consequently raising the grade thereof in front of the property of McQuade. The defendant insists that such changes and alterations of the grade in front of his premises are not authorized by the charter of the city of Trenton, or by any law of the state, and that consequently he was justified in the resistance which he made and the threats indulged in. It is urged that, instead of these changes being so made as to carry off the water, they cause it to accumulate in front of McQuade's premises, and direct it into his cellar. It is also urged that, in case the pavement and curbing be reset according to the contemplated grade, the pavement will be raised so high as to materially intercept the passage of light and air to his cellar. Because the railroad company is interested in these changes, and took a large part in the work of completing them, it is insisted that the city is not really interested therein, and consequently had no authority to pass the ordinance under which the city authorities have pretended to act in relaying the pavement and resetting the curb in front of McQuade's house. It is also claimed that if in any event the city had authority to enter into such an arrangement with the railroad company, and the latter might proceed with the prosecution and completion of such improvements, it had no right to proceed until it first made compensation to McQuade for whatever damages he might sustain because of such changes, and, consequently, that he has the right forcibly to interfere and prevent the relaying of said sidewalk and the recurbing of the street until such compensation is duly made him.
Doubtless the city authorities had the right to make the changes in the grade of the streets, curbs, and sidewalks above mentioned. The fact that the streets had once been graded, and the different elevations and depressions prescribed, did not exhaust the power of the city authorities, such power being a continuing one. McKevitt v. Mayor, etc., of Hoboken, 45 N. J. Law, 482; 2 Dill. Mun. Corp. § 686; Smith v. Corporation of Washington, 20 How. 135; In re Purman Street, 17 Wend. 651; City of Delphi v. Evans, 36 Ind. 00. The city authorities have the power to determine the grade of the streets, and, when properly exercised, such authority is exclusive or inherent in the municipal authorities, to the exclusion of courts of justice. 2 Dill. Mun. Corp. § 686. The defendant justifies his course, and objects to any restraint because neither the city nor the company, nor both by mutual agreement, had the right to proceed and make the proposed changes or improvements without first making compensation to him for the damages which he would sustain by such changes or improvements. It is claimed that, under the constitution, neither the city nor the company, nor both, had the right to impose any new burdens upon his land, as was done by raising the grade of the street in order to effect convenient access to the bridge over the railroad by means of ordinary approaches, without such compensation. In support of this view many authorities are cited. Mettler v. Railroad Co., 25 N. J. Eq. 214; Morris & E. R. Co. v. Hudson T. R. Co., Id. 388; Redman v. Railroad Co., 33 N. J. Eq. 165; Johnson v. Railway Co., 45 N. J. Eq. 460, 17 Atl. 574; Folley v. City of Passaic, 26 N. J. Eq. 216; Morris Canal & Banking Co. v. Mayor, etc., of Jersey City, Id. 294; Jersey City v. Central R. Co., 40 N. J. Eq. 417, 2 Atl. 262.
The general doctrine here invoked no one questions; but whether it is applicable at this stage of the proceedings between these parties admits of very grave doubt, in the sense in which the defendant desires that it shall be applied. The relative rights of these parties are to be determined by the situation in which they were with respect to each other at the time of the filing of this bill, and not in respect to the time in which the changes and improvements were begun. Parties may not lose any of their substantial rights of property, or of action for damage thereto, by delay, but they may lose the right to pursue remedies which they otherwise would enjoy under well-settled provisions of the law. I think these remarks are controlling in this case. The defendant has by his delay forfeited his right to protection in interfering with the full completion of this work of change upon the part of the city until he shall have been compensated for all the damages which he now alleges he has sustained because of all the other changes in the grade and elevation of the street which have been carried on to absolute completion, and which he says so result to his damage. He allowed all of this work so far to be finished without in any manner offering any opposition. Rettinger v. City of Passaic, 45 N. J. Law, 147; State v. Mayor, etc., of Paterson, 40 N. J. Law, 244. Nothing remains to be done but making the sidewalk and curbing conform to the rest of the work which is so complete. Under the law, his right of compensation for any damages which he may have sustained remains unimpaired. The seventieth section of an act concerning roads expressly provides a remedy in such cases. Revision, p. 1009; Vorrath v. Hoboken, 49 N. J. Law, 285, 8 Atl. 125; State v. Mayor, etc., of Morristown, 34 N. J. Law, 445. Since all of the changes in grades were determined upon by ordinance, and all completed accordingly, except the sidewalk and curbing in front of the defendant's dwelling, many months before the filing of the bill, and since he had ample notice of the beginning, progress, and completion of such work, and availed himself of none of the legal remedies which the law affords him, and since from the broken, irregular, and bad condition of the sidewalk and curbing pedestrians may be injured, and., in consequence thereof, the city may be liable to actions for damages, and since, according to the cases cited, the law seems to be so well settled as to the rights of the city and the citizen, I regard it my plain duty to advise a preliminary injunction, restraining the defendant, not only from further interfering with the laying and completion of the sidewalk and curbing mentioned in the bill of complaint, but also from in any manner removing, disturbing, or interfering with the said pavement, sidewalk, or curbing after the same shall have been completed.