On application for a writ of mandamus.
For the relators Ruth Marsh, Doris Marsh, Blanche Bellows, Amy Williams King, T. Wright Williams and Adelaide S. Williams, Kussy, Cohn & Kohn (Raymond H. Cohn, of counsel).
For the relators Anna S. A. Graf and August Graf, individually, and August Graf, as executor of the estate of George C. Shipman, James D. Connell (Victor Ruskin, of counsel).
For the respondent, James F. X. O'Brien (Raymond Schroeder, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
PORTER, J. This matter comes before us on a rule to show cause issued June 9th, 1934, why a peremptory or alternative writ of mandamus shall not be issued "commanding and enjoining the respondent to award forthwith to the relators herein damages for taking of the premises in the petition described or to apply forthwith for the appointment of three commissioners to ascertain and assess the damages suffered by the relators by reason of the taking of the lands in said petition described."
It appears that one of the petitioners died and an order for revivor was entered November 16th, 1937, suggesting said death on the record and substituting the executor and certain
other interested persons as parties. It further appears that on April 28th, 1939, a stipulation by all the parties was filed agreeing to submit the matter on briefs and on an agreed statement of facts. The matter has been continued from term to term by stipulation of the parties.
The relators claim reversionary title to certain lands situated in the city of Newark which were conveyed by their ancestor to the Morris Canal and Banking Co. (hereinafter called the Canal Company) which they contend vested in them upon the abandonment of the canal.
The pertinent facts are that the Canal Company was chartered by act of the legislature in 1824. Pamph. L. 1824, p. 158. The title of the act is "An act to incorporate a company to form an artificial navigation between the Passaic and Delaware Rivers." The company was authorized to take and possess all such lands as might be necessary for its purposes but limited (section 27) to such only as are actually necessary for the erection and use of said canal for the purpose of navigation only.
By deed dated January 9th, 1830, Charles T. Shipman, Abraham W. Kinney, John C. Hedenberg and Andrew Rankin, through whom the relators claim, conveyed to the Canal Company a parcel of land on the easterly side of High street near Academy street, Newark, fifty feet frontage and a depth of four hundred and twenty-seven feet. The deed recited that the land was "situated on the side hill where the inclined plane is located and is in part occupied by same" and also recited "provided the lands so taken and occupied shall not exceed fifty feet in width for the inclined plane, towing path and race way for the water." The act of the legislature incorporating the Canal Company is recited in the deed and the habendum clause is as follows: "To have and to hold the said lands and premises to the said, The Morris Canal and Banking ...