On appeal from the Essex County Circuit Court.
For the appellants, Lintott, Kahrs & Young.
For the respondent, Frank A. Boettner and Frederick H. Groel.
The opinion of the court was delivered by
CASE, J. This is an appeal from a judgment in favor of the city of Newark, respondent here, defendant below, and
against the appellants in an ejectment suit brought by the latter in the Essex County Circuit Court to recover possession of a tract of land with a frontage of thirty feet and a depth of sixty-two feet, located on the north side of Commerce street, in the city of Newark. The facts were stipulated and the case was, by consent, submitted to and determined by the court without a jury.
The appellants claim in the right of Christian R. Wolters, Sr., who was the owner of the property in 1888 but is now dead. On April 14th, 1888, the city, having theretofore negotiated unsuccessfully with Wolters for the purchase of the premises, filed its petition for the appointment of condemnation commissioners and in due season prosecuted the proceeding to an award of $20,000 in favor of Wolters. Wolters appealed from that award and on the appeal was granted $25,466. The city thereupon paid the last mentioned sum to Wolters and, by virtue of the consummation of the condemnation proceedings, entered into and upon the premises and used the same, together with other adjoining premises, for market purposes.
The proceedings to acquire the property were under an act entitled "An act to authorize the purchase and condemnation of land and the erection of buildings for market purposes in the cities of this state and other places in which market facilities are or may be required for public use, and to provide therefor," passed April 22d, 1886. Pamph. L. 1886, ch. 191, p. 268. The statute provides in part:
"1. That whenever in the judgment of the common council or other governing body of any city, additional market facilities are or may be required for public uses, it shall and may be lawful for such council or other governing body to appoint five commissioners, who shall serve without any compensation, to purchase such lands and erect suitable buildings thereon, to be used as a public market."
"3. That in case it should in any case be found that suitable property cannot be purchased by agreement with the
owner or owners, or in case the price demanded by such owner or owners is, in the judgment of the commissioners, in any case exorbitant, and more than a fair equivalent therefor, then the said commissioners shall report the same, with a description of the said lands, to the common council or other governing body, and the said council or other governing body may order and direct the condemnation thereof."
"5. That the said [condemnation] commissioners appointed by the Circuit Court * * * shall forthwith proceed to estimate and determine the fair value of the lands and real estate so to be taken and condemned as aforesaid, and of the damages which the owner or owners thereof will suffer by reason of the taking thereof * * * and immediately upon the payment to said owner or owners of the amount of the said valuation, or in case he or they will not or cannot receive the same, upon deposit of the same in such bank or institution as the said court or judge may direct, the title to and the right of possession of such property shall immediately become vested in such city or place; and any owner conceiving himself or herself aggrieved by the proceedings of said commissioners, may appeal therefrom to the Supreme Court of this state at any time within sixty days after the filing of the said certificate, and the said court shall thereupon order a trial by jury to assess the value of the said property and the said damages, which trial shall be conducted in all respects as in other cases of trial by jury, and the final judgment of the said court upon the verdict rendered therein shall be conclusive upon all parties as to the said valuation and damages * * *."
"6. That all titles taken for the purposes mentioned in this act shall be in the name of the city or place in which the lands are purchased and the buildings ...