Summary
In Paterson & S. L. Co. v. Wostbrock (N. J. Ch.) 56 Atl. 698, I had occasion to consider the character of this right of consent, and held that it was not a property right, but only a special statutory limitation on the authority of the municipality.
Summary of this case from St. Columba's Church v. N. Jersey St. Ry. Co.Opinion
12-31-1903
PATERSON & S. L. TRACTION CO. v. WOSTBROCK et al.
Preston Stevenson and Mr. Collins, for complainant. Cornelius Doremus, for defendants.
Suit by the Paterson & State Line Traction Company against Henry J. Wostbrock and others for injunction and other relief. Bill dismissed.
Preston Stevenson and Mr. Collins, for complainant.
Cornelius Doremus, for defendants.
EMERY, V. C. Complainant is a traction company organized under the act of March 14, 1893, and previous to the time of filing the bill had applied to the borough council of the borough of Midland Park to construct and operate its road on a portion of the street known as Godwin avenue, within the borough, and between certain points on that avenue, designated in the application. The application was made under the act of April 21, 1896 (P. L. 329), which, in reference to the matters now in controversy, provides (section 1) that no street railroads should thereafter be constructed upon any street or highway, except upon the consent of the governing body of the borough or other municipality; that such consent should be granted only upon petition of the corporation desiring to construct the road; that before such petition be granted public notice of a hearing upon the application should be given (in a manner prescribed); and that upon the date fixed by the notice, or the date to which the hearing should be adjourned, the governing body might by ordinance, and not otherwise, grant, or by resolution might refuse, permission to construct the road upon the street or highway named in the petition; "provided, however, that such permission to construct, maintain and operate a street railway shall in no case be granted, in whole or in part, until there shall be filed with the clerk of such governing body, or other equivalent officer, the consent in writing of the owner or owners of at least one-half in amount in lineal feet of property fronting on the streets," etc., "or upon the parts of the streets," etc., "through or upon which permission to construct, operate and maintain a street railway is asked, * * * which consent shall be executed and acknowledged, as are deeds entitled to be recorded. * * *" The application by petition was made to the borough council on April 14, 1902, and on July 1, 1902, a date of the meeting of council to which the hearing or proceedings on the application had been duly adjourned, the complainant had procured the necessary consents of the owners of 51 per cent. of the total lineal frontage, which was 4,592 feet. Defendant Henry J. Wostbrock, as the owner of 695 feet, and defendant Mary J. Wostbrock, as the owner of 412 feet, had given consents in writing to the construction of the road. None of the consents of any of the owners had been filed previous to the meeting of July 1st, and at that meeting of council the consents were produced to the council, but at complainant's request were not filed. The ordinance granting permission to construct the road was amended at this meeting, and was then as amended adopted on second reading, and passed to its third reading. After this action defendant Henry J. Wostbrock announced that he withdrew his consent, and at his request, notwithstanding the objection of the complainant, the paper withdrawing or claiming to withdraw his consent was placed on file. The meeting then adjourned, and the next regular meeting of the council—the first meeting at which the ordinance could be read a third time and passed—occurred on July 14th. On July 11th this bill was filed against Henry J. Wostbrock and Mary J. Wostbrock to enjoin the interfering, by word, deed, or writing, with complainant's use of the consents, and to compel the withdrawal by Henry J. Wostbrock of the paper filed by him with the borough council, or the execution of some document to be filed with the council nullifying or canceling it. The defendant Mary J. Wostbrock had not formally withdrawn her consent, but, as complainant alleged, threatened to do so through her agent, Henry J. Wostbrock, her son, and a similar injunction was prayed against her. On this bill an order to show cause, returnable July 22, 1902, was granted, with an ad interim stay, against withdrawing, revoking, or attempting to revoke the consents delivered to complainant the restraint (which was granted ex parte) being on the condition that pending the return of the rule complainant refrain from filing with the council either of said consents. The borough was not a party to the bill, no injunction against its proceeding pending the hearing was applied for, and on July 14, 1902, at the regular meeting of the council, a resolution was offered and passed that the application of the complainant be denied, and that no further action be taken in reference thereto. This resolution has not been questioned by the complainant, and up to the time of the hearing no subsequent application to construct the road in the borough had been made. Complainant, however, claims to be entitled to a declaration or decree establishing the validity of the consents, and to have the rights conferred upon it by the consents protected or secured for the future by injunctions against interference with the consents by word or act, or clouding complainant's title or right under them. The claim to this relief is based upon the contention that the consents of the defendants were given for or are based on valuable consideration, that they are rights in the nature of or analogous to easements, and are property rights to the recognition and protection of which complainant is entitled, and that the only adequate method of protecting complainant's rights in the consents is in equity and by injunction against interference with them. The defendants, on the other hand, claim that the consents were not based upon consideration, but were voluntary, that they confer no property rights, that the consentsare revocable at any time before they have been filed with the borough clerk, and that, the application for which they were given having been finally disposed of by the resolution of the council, the consents cannot be again used on any subsequent application, and have no longer any validity whatever. The jurisdiction of the court to grant any relief in the premises is also denied. The right of the complainant under these consents, whatever may be its scope and extent, is in its primary character a right legal rather than equitable, and the character and nature of these rights are therefore, in the first instance, to be ascertained by the decisions of our courts of law, and this court upon this application must be controlled by these decisions.
The owner of lands abutting on the public street has no such interest or right in the lands included within the public street as to make his consent necessary for the construction and operation of a street railroad upon the street. Roebling v. Passenger Railway Co. (1896) 58 N. J. Law, 666, 670, 34 Atl. 1090, 33 L. R. A. 129. While the Legislature may therefore authorize the construction without the consent of the abutting owners or any of them, it may, however, lawfully require such consents, and the requirement that the owners of a majority of lineal feet in frontage shall consent is a valid exercise of legislative power in relation to such consents. This privilege or right of the abutting owner to consent is derived altogether from the statute, and its nature, scope, and extent depends altogether upon the statute which confers it. Under the traction act the consents are given effect and are operative only in connection with the authority delegated to the municipal authorities to grant permission to construct the road, and on the face of the statute the requirement of the consents is purely a limitation or provision on the authority of the municipal body to grant the franchise; and it is a limitation or proviso affecting only the power of the council on the final grant or passage of the ordinance, for the consents (which are required to be filed) may be filed on the final passage of the grant. State (Hutchinson, Pros.) v. Belmar (Sup. 1898) 39 Atl. 643, 645. Being, however, documents which are to be used in connection with the application, they may be filed with the application or at any time after, and when thus filed the right of the street railroad company to the statutory operation of the consents filed becomes, for the purpose of the pending application, effective as to the abutting lands included within the consents filed, so that no subsequent alienation of the lands or withdrawal of the consent can operate to affect the consent given. Currie v. Atlantic City (1901) 66 N. J. Law, 140, 146, 147, 48 Atl. 615, 66 N. J. Law, 671, 50 Atl. 504.
The decision upon writ of error in this case leaves the question of the right of such withdrawal open for future decision by the Court of Errors, but the opinion of the Supreme Court that no withdrawal of consent could be made after a sufficient number had been filed to give the council jurisdiction was not expressly questioned or doubted, and for the purposes of this application in equity, to assist in the protection of a legal right, the decision of the Supreme Court must be taken as settling the question of the present status of the legal right. The decision of the Court of Errors and Appeals in the Currie Case also holds (page 674, 66 N. J. Law, and page 505, 50 Atl.) that after the council had acted on one application of the company under the statute, either by the passage of an ordinance granting the permission (after consents filed) or by resolution denying it, the statutory authority of the council on the pending application is exhausted, and the council becomes thereafter functus officio, so far as regards the subject-matter of the application. In the present case, the resolution denying the application of complainant to construct its road having been passed by the council subsequent to the filing of the bill, there is now no application pending relative to which the consents in question can be held to apply. The only basis, therefore, upon which the complainant's bill can now be rested, is that the consents give to it such rights against the persons who have given them as to entitle it to a declaration or decree preventing threatened interference with the right conferred by the consents. Complainant claims that, the consents having been granted upon consideration, they are in the nature of property rights or easements. The decision of the Supreme Court in Military Academy v. North Jersey St. Railway Co. (1900) 65 N. J. Law, 328, 47 Atl. 860, establishes that the abutting owner, who is such at the time of consent, has such an interest as entitles him to dispose of his consent for a consideration; but this interest is, in my judgment, a personal interest only in the matter of application pending or to be brought before the municipal council. For his consent to such application he may lawfully require compensation, and if his consent is received and acted on (without withdrawal), as in the Military Academy Case, he would be entitled to recover the promised consideration. But the manifest object of the provision allowing consents was not to give to every abutting owner, as such, a right to consent for all future owners of the land to any future application, but to require the consent of those who were owners of the land at the time of the application to be acted on. Any other view of the nature of the consent would, under color of this statutory consent, confer upon an abutting owner a transferable property right in the street, which has always been denied to him. There is not, therefore, and there cannot be, under our decisions, any right to consent, which is a general property right or easement attached to the ownership of the property, and the only right whichcomplainant can enforce under such consents must be the statutory right which arises only in connection with some application or proposed application to the council for constructing its road.
No application is now pending, and none may be hereafter made. No declaration should therefore be now made as to the right of withdrawal or the effect of the previous withdrawal. If on any subsequent application the defendants still remain the owners of the property in question, and the complainant file the consents in question, the question of their effect, and of the jurisdiction of this court to protect the consents and effectuate their purpose by injunction or otherwise, may be considered; but, according to my present views, an application pending before the council and the filing of the consents are, under the statute, necessary preliminaries to the creation in the complainant of the statutory legal right which the court is asked to protect by its injunction or decree.
The bill, therefore, must be dismissed.