On rule to show cause for an alternative writ of mandamus.
For the relators, Robert B. Meyner.
For the respondents, John H. Pursel.
The opinion of the court was delivered by
PARKER, J. Eight different ownership interests are represented in this case by twelve different plaintiffs, wives and husbands being joined in several instances. We take it that this joinder of the various interests is predicated on section 4 of the Practice act of 1912 which provides that persons interested in cause of action may join if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions. It is not entirely clear that this statute is legally applicable to proceedings in mandamus, but no objection is made, the cases are all in pari materia, and the matter is alluded to mainly with regard to its ultimate possibilities in this particular litigation.
The various relators are the owners of residential properties in Phillipsburg in the immediate vicinity of a bridge across
the Delaware river which has been carried above grade over some of the local streets and connects above grade with a part of the state highway system. The bridge and the state roads are of recent construction, and in connection with that construction, and speaking generally, there were two important changes in the terrain. One change was that several minor streets in the neighborhood of the houses where the relators lived have been closed to public use. The second important change is that the State Highway, as it will be called herein for convenience, which lies between the properties of the relators and the Delaware river, is, as has been said, some twenty or thirty feet above the natural grade on an embankment at this point, the slope of which embankment stretches from the State Highway towards the rear line of the properties of the relators and has the effect of cutting off their view of the river and the country on the other side. This they claim is a substantial damage to their properties. Inasmuch as all the houses occupied by the relators face away from the river, the view that they have in the direction of the river is necessarily from their back windows or back yards; but this goes only to the quantum of the alleged injury sustained.
In this general state of affairs the relators claim that they are entitled to be paid for such damages as their respective properties have sustained because of the two general alterations just described. They demanded that the respondent the joint toll bridge commission, which has powers of condemnation, should institute proper proceedings for the ascertainment of these damages. This was refused on the fundamental ground that the relators had sustained no damages for which they were legally entitled to compensation, and this question of law is the controlling issue in the present case. There appears to be no dispute whatever as to the physical facts which are stipulated in connection with maps and photographs, so the inquiry is, do relators stand on solid legal ground in insisting that this power of condemnation which the respondent possesses must, as a matter of law, be exercised with a view of ascertainment and payment of the alleged damages in question.
If this were an ordinary case of a state highway or of a state agency or a private corporation endowed with a power of eminent domain, it is quite clear, if not indeed fundamental, that no damages have been sustained for which the parties damages are legally entitled to compensation.
As to the embankment, it is located altogether upon lands owned or controlled by the respondent; and by its construction the relators have not suffered any damage different in essence from that which they would suffer if a private owner of that land had built a high building thereon within his proper lines and thereby interfered with their view and access of air, &c. Hayden v. Dutcher, 31 N.J. Eq. 217; Engel v. Siderides, 112 Id. 431; Harwood ads. Tompkins, 24 N.J.L. 425. Authorities might readily be multiplied.
As to the changes of grade and vacation of streets, it is settled, in the absence of some statute, that a landowner who has been actually damaged sustains no legal injury for which he is entitled to compensation. On this phase of the case the respondent properly cites such cases as Cooper v. State Highway Commission, 6 N.J. Mis. R. 723; Burns Holding Corp. v. Same, 8 Id. 452; affirmed, 108 N.J.L. 401, and Sommer v. Same, 106 Id. 26. In regard to the vacation of streets, a leading case, and one sufficient for present purposes, is Newark v. Hatt, 79 Id. 548, where (at p. 550), the late Mr. Justice Bergen, speaking for the Court of Errors and Appeals, said, in regard to the vacation of a street, "the right of the state to destroy public improvements of this class without compensation is not limited by the constitution, and except for the statute, as expressed in the charter of the city, this street could have been vacated without the slightest consideration of its effect upon any land lying along it, or the payment by the city of compensation to any landowners for damages." To sum up on this phase of the matter, it may be said generally ...