On appeal from the Morris County Circuit Court.
For the appellant, William A. Stevens, attorney-general; Walter H. Bacon, Jr., and George T. Vickers.
For the respondent, Samuel C. Meyerson.
The opinion of the court was delivered by
DONGES, J. This appeal brings up a judgment of the Morris County Circuit Court, in favor of the town of Dover against the state highway commission, entered after a trial on appeal by the municipality from an award of commissioners in condemnation proceedings instituted by the highway commission to acquire certain lands of the municipality.
The record does not contain the proceedings prior to the trial on appeal, but contains a stipulation that the papers, orders and steps in procedure which are enumerated in the stipulation are regular in form and substance, and these indicate that the proceeding was initiated by the highway commission under the Eminent Domain act to have the value of the property taken determined in accordance with the provisions of that act.
It appears that the town of Dover was desirous of acquiring lands used by the Morris Conal and Banking Company, and sought to do so under the provisions of chapters 78 and 229 of the laws of 1924, and to that end made certain offers for the property. Thereafter, it was asserted by the town that the canal company did not have title to the property and was merely in possession and using the same. It is asserted,
and apparently not disputed that the canal company, under the terms of its charter, could not acquire title to lands by adverse possession, but had power to demise, grant, alien or sell only such lands as were received by it by donation or acquired by private contract. Pamph. L. 1824, p. 175, § 27, Canal Charter. There was no attempt, so far as the record shows, to establish by proofs that the canal company had legal title to the lands. So far as the proofs disclose, the legal title to the lands in question was in one Henrietta C. Brinckerhoff, deceased. On December 2d, 1926, Henry M. Brinckerhoff, trustee of said Henrietta C. Brinckerhoff, conveyed all of the right, title and interest of said Henrietta C. Brinckerhoff, deceased, to the town of Dover. Section 3 of chapter 78 of the laws of 1924 (Pamph. L., p. 151) provides for the acquisition of any outstanding interest or private rights in the lands used by the canal company. On July 27th, 1927, a conveyance to the town of Dover of all the right, title and interest of Morris Canal and Banking Company in the premises was made.
The appellant urges that the lands were held by the town in its governmental capacity, for public uses only, and that, therefore, the court should have instructed the jury to return a verdict for nominal damages only. Motions were made at the end of the town's case and at the conclusion of appellant's case for such instructions, and a request to charge seeks the same instruction.
The trial judge left the question as to whether the town held the property in its governmental capacity or whether it held it in its proprietary right to the jury as a question of fact. He charged, in accordance with the appellant's request, that if the lands were held by the town in its governmental capacity, that nominal damages only should be awarded. The jury evidently found the facts against the contention of the appellant, and awarded a verdict for the town in the sum of $7,500.
Without deciding whether or not, from the evidence submitted, the judge would have been justified in holding that the town acquired title from Brinckerhoff, and that it held it in its ...