On appeal from the Essex County Circuit Court.
For the appellant, Stetson & Mapletoft (Henry T. Stetson, William Hamilton Osborne and Charles F. Mapletoft, of counsel).
For the respondent, Frank A. Boettner and Frederick H. Groel.
The opinion of the court was delivered by
CASE, J. This is an action in ejectment heard by consent, and on an agreed state of facts, by Judge Smith, without a
jury, in the Essex County Circuit Court. Judgment was for the city and plaintiff appeals. The suit is to recover possession of a lot of land, thirty feet front and fifty-three feet deep, on the southerly side of South Canal street (Raymond Boulevard), in the city of Newark, originally the property of Peter Lindsley, plaintiff's grandfather. The land was condemned for the purposes of a city market and, with neighboring lands, was for many years so used. Recently the market use was abandoned and the land was, by ordinance, opened up as part of a city street. The case in many of its aspects resembles Carroll et al. v. City of Newark, post, p. 323. The lands in the two cases abut on their rear lines and together form the newly opened "Commerce Court" extending from Commerce street to South Canal street. The cases differ in that the respective condemnation proceedings were at different times and under different statutes.
The condemnation in the instant case was under the authority of an act entitled "A further supplement to an act entitled 'An act to incorporate the city of Newark,'" approved March 13th, 1851. P.L. 1851, p. 232. Section 15 of the act enacts:
"That it may be lawful for the common council to take, for the purpose of enlarging the present public market place, called the Centre Market and for the purpose of sewers and drains, such lands or other real estate and appurtenances as the common council determine to be requisite, compensation being first ascertained and paid therefor, in the same manner as is now provided when lands are taken for public streets."
The city, unable to acquire by purchase, condemned the property in 1853 "for the purpose of enlarging the then Public Market Place called Centre Market." The appropriate resolution stated that the condemnation commissioners in making an estimate and assessment of the compensation and damages, had authority to proceed in the same manner as was then provided when lands were to be taken for public streets. The words of the statute "in the same manner as is now provided when lands are taken for public streets" so clearly refer to the method of the taking, that is, the procedure in condemnation, and not to the estate taken, that, without
more, we state this to be our construction. The commissioners made an award to the owner, Peter Lindsley, of $1,600, and this sum, with an addition for interest, was paid by the city to Lindsley in full satisfaction of the damages awarded him. The city forthwith took possession of and occupied the lands.
There is no suggestion that the city was not fully and of right in the exclusive possession and occupancy of the entire lands from the date of the condemnation until the occurrence of the events presently to be mentioned, and on the presentation made we assume the fact of such right, possession and occupancy. It is presumed that the tribunal upon which devolved the function of fixing compensation to the owner whose property was taken appraised an estate fully commensurable in quantity and duration with the proposed use which formed the occasion and the justification for the condemnation. It was the duty of the condemnation commissioners in making the award for Lindsley's "lands or other real estate and appurtenances," which the statute authorized to be taken to have regard for the fact that the needs and functions of a city market were such that the possession and occupancy by the city not only would be complete and exclusive but might last forever, and to fix their award for compensation accordingly. There is nothing in the case to indicate that the award was not made, paid and received on that basis. Nor does it appear that either Peter Lindsley or his heirs owned or had any interest in other lands appurtenant to these or to which these lands were appurtenant. Lindsley died in 1856. He was the father of five children, all of whom have since died. The record contains no hint that Lindsley or his heirs ever exercised, or attempted to exercise or even asserted the right to exercise, any of the ...