In this action the plaintiff seeks a mandatory injunction requiring the defendants to remove a portion of the building which it is alleged encroaches upon the public highway commonly known as the Paterson-Hamburgh Turnpike. The existence of the encroachment is denied by the defendants.
By chapter 193 of the Laws of 1806 the Legislature incorporated the "Paterson-Hamburgh Turnpike Company" and authorized it to construct and operate the turnpike road between Acquackanonk Landing (now Passaic), in the County of Passaic, and Deckertown (now Sussex) in the County of Sussex. In compliance with the provisions of the statute the Governor appointed surveyors who laid out the turnpike and made a return, detailing the survey of the center line of the proposed road. The return was filed in the office of the Secretary of State on October 18, 1806. Thereafter several reports of progress in the construction of the road were made by the company. On receipt of such reports the Governor appointed commissioners to view the completed portions of the highway. The commissioners reported favorably and the Governor, by proclamation, authorized the installation of toll booths on such completed sections of the road. Finally, on May 12, 1812, Governor Bloomfield issued a proclamation in which was recited a report from the commissioners that the turnpike had been completed in accordance with the requirements of the statute. The Governor then authorized the erection of toll booths throughout the entire length of the turnpike and also authorized its operation by the Turnpike Company.
The statute required that the turnpike should be paved to a width of 20 feet in the center. This width was later reduced to 18 feet by an amendment to the charter of the company. Actually the proofs indicate that the road was paved to a width of 30 feet.
In view of the return of the surveyors, coupled with the report of the commissioners and the proclamation of Governor Bloomfield, we must assume, in the absence of proof
to the contrary, that the turnpike was constructed in conformity with the provisions of the statute. Mayor, etc., ads. State, Batten , 32 N.J.L. 453 (E. & A. 1865); Humphreys v. Mayor and Council of Woodstown , 48 N.J.L. 588 (E. & A. 1886).
The charter of the turnpike company gave to it an easement of 66 feet for the benefit of the public and this right of way extends for the full width of the easement and not merely to the part which is worked or actually traveled. Miller v. Penna.-Reading Seashore Lines, Inc. , 117 N.J.L. 152 (E. & A. 1936); Humphreys v. Mayor and Council of Woodstown, supra; Opdycke v. Public Service Ry. Co. , 78 N.J.L. 576 (E. & A. 1909).
By chapter 194 of the Laws of 1860 the charter of the turnpike company was revoked and the turnpike became a public road. In 1888 it was adopted as a county road by the County of Passaic and has since been maintained as such.
The part of the road with which we are presently concerned is that section which runs through the Borough of Bloomingdale. In that borough the turnpike is known as Main Street. It is paved to a width of 30 feet. The building of the defendant stands close to the border of the paved section of the highway and encroaches on the right of way of the highway to the extent of approximately 10 feet.
The County of Passaic and the Borough of Bloomingdale are presently engaged in widening and repaving the highway. Demand has been made upon the defendants for the removal of the encroaching structure. The demand was refused.
The defendants argue that the plaintiff has failed to establish the center line of Main Street as the center line of the turnpike. In my opinion the argument is without force. It must be conceded that after a lapse of 146 years the courses as shown on the survey will not coincide exactly with the compass readings at the present time. However, the proof is that for ...