Opinion
03-20-1912
VREELAND v. ERIE R. CO. et al.
William I. Lewis, of Paterson, for complainant. Edmund Wilson, Atty. Gen., and Nelson Gaskill, Asst Atty. Gen., for defendant Forest Park Reservation Co.
Bill by James R. Vreeland against the Erie Railroad Company and another to enjoin cutting of fire lines. Conclusions for complainant.
William I. Lewis, of Paterson, for complainant.
Edmund Wilson, Atty. Gen., and Nelson Gaskill, Asst Atty. Gen., for defendant Forest Park Reservation Co.
TEN EYCK, Advisory Master. The complainant seeks to enjoin the defendants from carrying into effect their purpose to enterupon complainant's woodlands and cut trees, brush, etc., for the purpose of constructing "fire lines," under the authority of the statute passed in 1909 (chapter 74), entitled "An act for the protection of woodlands." The purpose of this act is to protect woodlands from danger of fire from locomotives operated upon railroads adjoining such lands.
In the case of Costigan v. Pennsylvania Railroad, 54 N. J. Law, 233, 23 Atl. 810, the court holds that no private owner can have any remedy for special injuries arising incidentally from the operation of railroads, except such as are due to negligence; these include the sounding of whistles, the emission of smoke and sparks, noise, vibration, smells from freight, interference with highways, and all public injuries. The franchise granted, permitting such operation, legalizes acts which are the necessary concomitants of the use of the franchise, and which would otherwise constitute public nuisances. But such permission does not legalize acts which are a direct invasion of private property, under color of the franchise, nor confer the right to impose any servitude upon adjoining property, even though that be necessary for the construction and operation of the road. For the use or occupation of property, the railroad must purchase or condemn, and pay for the rights acquired. The appropriation of private property to such use, by any other means than purchase or condemnation, would be a violation of the constitutional prohibition. The rule is the same whether the appropriation be temporary or partial, or whether it be total or complete; the difference being only in degree. In that case, it was held that injury to adjoining property, caused by the additional lateral pressure of the high embankments built by the railroad, was actionable.
In the present case, the necessity for the cutting of the trees, etc., and construction of the fire lines arises solely from the fact of the proximity of the railroad and its operation. For the incidental danger from fire resulting from such operation, and thus legalized, the owner has no remedy, and no redress in case of actual damage from fire, except such as may result from negligence. But the Legislature could not authorize the railroad company, either for the purpose of construction or operation of its road, to take or injure any property or property rights of the adjoining owner, without compensation. This would be a direct invasion of private property.
If the company had authority to cut fire lines, such cutting would undoubtedly greatly reduce the possibility of fire, and would in ail probability preserve the company from all liability to adjoining owners, arising from fire; and even the negligent permission of sparks to escape from a locomotive would, in such case, not result in starting any fires. But such authority, if granted only for the purpose of preserving the railroad from possible liability, and if not required on account of any danger to the public, would have been clearly unconstitutional.
This question arises: The public having legalized the nuisance and the danger consequent on it, and having already subjected the adjoining owner to serious and constant danger, for which he is in no wise responsible, and for which he never received any compensation, can it go still further, and by the exercise of the police power protect itself from the consequences of such grant, taking for that purpose the private property of the owner, without any compensation to him, by authorizing the destruction of every tree and other growing thing on the 10-foot strip, and the cutting out, as the statute provides, on the whole strip of 100 to 200 feet in width?
Many of these trees may be of great value. The principle involved does not depend, however, upon the value of the property. Costigan v. P. R. R. Co., supra.
In my judgment, it is clear that such taking cannot be justified under the police power. This is not a case where the danger to the public is caused by any inherent difficulty or trouble existing in or upon the land itself, such as justifies the drainage of wet lands, or the cutting of weeds, etc., growing on city lots, under the police power. Nor is it required as a consequence of the use to which the owner himself has put the premises, such as the necessity for the installment of running water and sewer connections in tenement houses (see New York Health Dept. v. Rector, etc., of Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710), or the construction of fire escapes on factories and large buildings.
The case more nearly resembles, in principle, that of the drainage of a public highway through lands of a private owner. There the public good required that the highway should be drained, but the court held that no such easement could be created, without making compensation to the owner. Ward v. Peck, 49 N. J. Law, 42, 6 Atl. 805; Miller v. Morristown, 47 N. J. Eq. 62, 20 Atl. 61; Field v. West Orange, 46 N. J. Eq. 183. 2 Atl. 236. Nor can the government take away, for public purposes, the rights of individuals to the advantages of streams of water, without compensation. Ten Eyck v. Del. & R. Canal Co., 18 N. J. Law, 200, 37 Am. Dee 233.
That the state may, under the police power, and where the public good requires it, regulate the use of property, and that damages which are merely incidental to such regulation need not be compensated for, is not disputed. But such laws operate prospectively only, and do not authorize the destruction of existing property, unless the property itselfamounts to a nuisance, and is a source of imminent public danger. Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; Jackson v. Miller, 69 N. J. Eq. 182, 60 Atl. 1019.
The police power operates prospectively. It cannot require existing frame buildings to be torn down nor lowered in height, nor refuse the right to make ordinary repairs. Freund on Police Power, § 538. But it does extend to improvements and alterations which may result in rendering part of the property useless, and destroy their value as property. This is not a taking, but is a necessary incident to regulation. As the minor part has value only as serving the purposes of the principal property, it must necessarily yield to the requirements of the latter. Thus requirements for sewer connection and for running water may render useless wells or cisterns, or they may even be required to be abated. Freund, § 542.
In Hale v. Lawrence, 21 N. J. Law, 714, 47 Am. Dec. 190, the Court of Appeals, reversing the Supreme Court (whose opinion is reported in American Print Works v. Lawrence, 21 N. J. Law, 248), held that the defendant, who was the mayor of New York City, could not justify the destruction of goods in a building, which was blown up to prevent the spread of fire, under a statute authorizing the destruction of the building, and providing for compensation therefor, as the statute did not authorize the destruction of the goods, nor provide for compensation for their destruction; that the destruction of the building, for which compensation was provided, and of the goods (if the construction of the New York courts, holding that the statute extended also to the goods, should be followed, which it was not) was an official act under the law of eminent domain; that if the statute did include the goods it was unconstitutional, not having provided for any compensation, although the destruction was for public benefit; that it was for the benefit of the public, and could not be justified under the law of necessity, as would have been the case if the act had been done by an individual, or a number of individuals, whose property or particular district was actually threatened; that the action of such individuals might have justified such destruction, under the law of necessity.
Afterward the defendant filed amended pleas, setting up the defense that, on account of imminent danger, it was necessary to blow up the buildings, without waiting to remove the goods. These pleas were sustained by the Supreme Court (23 N. J. Law, 9), and, on appeal, by the Court of Appeals (23 N. J. Law, 590, 57 Am. Dec. 420), under the common-law doctrine of necessity, to avoid imminent danger, and irrespective of any statutory authority. The court (Carpenter, J.) says (pages 604-606 of 32 N. J. Law ): "The necessity must be immediate, imperative, and in some cases extreme and overwhelming. Mere expediency or utility will not suffice. * * * That branch of the doctrine (self-preservation, or public preservation under urgent necessity) is to be distinguished from that mere appropriation for public utility under a general state of necessity, and which comes within the doctrine of eminent domain. They are both spoken of sometimes as grounded on necessity; and they doubtless are so. But the latter stands strongly distinguished from that urgent necessity, which, for immediate preservation, imperatively demands immediate action. His case, who should throw up trenches on his neighbor's land for the protection of a town from an immediate hostile attack, as regards his justification, would certainly stand on a very different footing from one who, under the authority of law, should do the same act in order to guard the town from prospective and merely possible future harm. * * * It is not necessary for my purpose to intimate any opinion as to whether, in the last case, the individual would or would not be personally responsible; but certainly the sufferer would come within the constitutional provision." (The opinion here quotes, on the same line, of overruling and urgent necessity, from the case of Mayor of New York v. Lord, 17 Wend. 290, 297, and 2 Kent's Com. 338.) On page 613 of 32 N. J. Law (57 Am. Dec. 420), Judge Randolph states that the plaintiff might take issue on the plea of necessity; and if the jury found that it did not exist the plaintiff might recover. Thus it seems that only actual and immediate necessity, and not mere apprehension of danger, although reasonably entertained, could justify the action of the defendant in that case.
At page 615 of 32 N. J. Law (57 Am. Dec. 420), the opinion further distinguishes the law of necessity from that of eminent domain. Among the latter, the court places the taking of property for fortifications. This further illustrates the principles discussed by Judge Carpenter in his reference to the throwing up of trenches. In accordance with these principles, the defense of public safety by the construction of fortifications or trenches, required by urgent and immediate danger of invasion, or defense by means of the destruction of houses, trees, or other property, or the protection of the public by such destruction, or the taking of property in time of immediate and urgent danger by fire, may all be justified under the police power; but the construction of forts or trenches on private property, or the appropriation of such property for the same purposes of defense or protection, but not under stress of immediate necessity or imminent danger, falls, not within the limits of the police power, but under the law of eminent domain; and for such taking compensation must be made.
Freund says (section 521): "The taking ordestruction of property, being an extreme measure, is justified only within the narrowest limits of actual necessity, unless the state chooses to pay for it." And in section 534 (citing American Print Works v. Lawrence, 23 N. J. Law, 590, 57 Am. Dec. 420): "It is not an exercise of lawful governmental authority; but it relieves from acts otherwise tortious. * * * It may be doubted whether the Legislature has power to positively authorize and regulate such destruction without providing for compensation." And in section 535: "As a matter of fact, Legislatures do not assume such power. It is always accompanied by the statutory duty of compensation. The principles of the police power are much more truly expressed in this statutory regulation than in the so-called law of necessity."
The American Print Works Cases are extensively commented upon in Valentine v. Englewood, 76 N. J. Law, 509, at page 514, 71 Atl. 344, at page 348, 19 L. R. A. (N. S.) 262, 16 Ann. Cas. 731 Court of Appeals, opinion by Swayze, J.); but that case did not involve the precise point here in question.
In Re Opinion of the Justices, 103 Me. 506, 69 Atl. 627, 19 L. R. A. (N. S.) 422, 13 Ann. Cas. 745, the Supreme Court of Maine gave an advisory opinion as to the constitutionality of an act regulating the cutting of trees by the owners of wild lands. I think this case is not in point. No part of the property was taken. It may be remarked that many of the cases cited by the court are those upholding the right to destroy property constituting a nuisance per se, and other cases clearly within the police power; but these cases do not seem to furnish any support in theory for the conclusions announced by the court in that case.
The apparent public necessity for cutting fire lines in the present case is the direct result of the establishment and operation, under public authority, of the railroad, and, aside from the question of benefit to the railroad company, is for the protection of the public against the danger consequent upon such operation. To subject the particular owner, who was so unfortunate as to be within the prescribed area, to the loss of a valuable part of his property would be to invade his constitutional rights. This would be so, even if a similar danger had arisen, not from the operation of the railroad, but solely from natural causes, provided it was not the result of any inherent danger to the public in the property itself. The obligation to make compensation is much stronger where the public itself, for the purpose of establishing a convenient and necessary, although highly dangerous, means of transportation on a public highway, has caused and permitted this dangerous situation to exist.