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Colburn v. Delaware River Joint Toll Bridge Commission

Decided: September 22, 1939.

JOHN D. COLBURN ET AL., RELATORS-RESPONDENTS,
v.
DELAWARE RIVER JOINT TOLL BRIDGE COMMISSION, RESPONDENT-APPELLANT



On appeal from a judgment of the Supreme Court, whose opinion is reported sub. nom., Klement v. Delaware River, &c., Commission, 119 N.J.L. 600.

For the appellant, John H. Pursel and Edward P. Stout.

For the respondents, Robert B. Meyner.

Donges

The opinion of the court was delivered by

DONGES, J. This appeal is from a judgment of the Supreme Court allowing a writ of mandamus. It brings up the question of the right of the relators to have damages assessed for alleged injury to their property by reason of the construction of the Phillipsburg-Easton bridge under the control and supervision of the Delaware River Joint Toll Bridge Commission. This commission was created by chapter 297 of the laws of 1912.

The relators have property in the vicinity of the abutments and approaches of the bridge. None of their property was actually taken. Their claim is for consequential damage by the closing of streets and by the obstruction of view and limitation of light and air by the construction of the abutments and approaches.

In the opinion of Mr. Justice Parker it is pointed out that under the law of New Jersey there could be no recovery for these consequential damages, in the absence of some statute. It appears, however, that the act of 1912, as amended, now R.S. 32:9-1 et seq., an act which purports to be a joint act of the State of Pennsylvania and the State of New Jersey, acting through their several legislatures, provides for the payment of damages for injuries alleged to be suffered. In 32:8-4 the power of condemnation and matters relating thereto are dealt with and the term "real property" is defined as follows:

"The term 'real property' as used in this compact includes lands, structures, franchises, and interests in land, including lands under water and riparian rights, and any and all things and rights usually included within the said term, and includes not only fees simple and absolute, but also any and all lesser interests, such as easements, rights of way, uses, leases, licenses and all other incorporated (incorporeal) hereditaments and every estate, interest or right, legal or equitable, including terms of years and liens thereon by way of judgments, mortgages, or otherwise, and also claims for damage to real estate."

It will be noted that the very last provision is "claims for damage to real estate." In 32:9-1 et seq., the method of acquisition is provided for, and in 32:9-7 it is provided that:

"The joint commission, having viewed the premises or examined the property, shall hear all parties interested and their witnesses, and shall estimate the value of the property taken, including any easements, rights or franchises incident thereto as well as the damages for property taken, injured or destroyed, and shall state to whom the damages are payable."

This latter language follows the constitution of Pennsylvania, adopted in 1874, section 8 of article 16, which provides:

"Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction, enlargement of their works, highways, and improvements, which ...


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