For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J. Oliphant, J. (concurring). Oliphant, J., concurring in result.
The defendants appealed to the Appellate Division from a judgment of the Law Division which declared that the plaintiff had the right to construct the Garden State Parkway under the tracks and facilities and across the right-of-way of the defendant The Central Railroad Company of New Jersey without compensation for use of or entry upon such right of way. We certified under R.R. 1:10-1.
The Central Railroad was originally incorporated, under the name of Somerville and Easton Railroad Company, by L. 1847, p. 128 which provided in section 9 as follows:
" And be it enacted, That it shall be the duty of the said company to construct and keep in repair good and sufficient bridges or passages over or under the said railroad or roads, where any public or other road shall cross the same, so that the passage of carriages, horses, and cattle or the said road shall not be impeded thereby; and also, where the said road shall intersect any farm or lands of any individual, to provide and keep in repair suitable wagon ways over or under the said road, so that he may pass the same."
The general Railway Act of 1873 (L. 1873, c. 413, p. 88) provided in section 14 that it shall be the duty of any company incorporated thereunder to construct and maintain sufficient bridges and passages over, under and across the railroad "where any public or other road now or hereafter laid, shall cross the same." In an 1882 supplement the Legislature extended the duty to all companies operating railroads within the State. L. 1882, c. 157, p. 245. And in a later act concerning railroads (Revision of 1903) (L. 1903, c. 257, p. 645) the Legislature in section 26 again imposed the duty with respect to all railroads in the State with the proviso, however, that the "section shall not enlarge the duty imposed by its charter upon any railroad company incorporated by special act and whose railroad was constructed before the second day of April, eighteen hundred and seventy-three." The requirements of section 26 are now found in R.S. 48:12-49.
In 1952 the Legislature passed the act which created the New Jersey Highway Authority and empowered it to construct [21 NJ Page 161] the Garden State Parkway. L. 1952, c. 16; Town of Bloomfield v. N.J. Highway Authority, 18 N.J. 237, 243 (1955). Section 6 of that act (N.J.S.A. 27:12 B -6) authorized the Authority to relocate public utility facilities at its own expense. The route of the Parkway intersected the Central Railroad's right-of-way at a point in Matawan Township, Monmouth County, and the Authority's plan was to carry the Parkway under the railroad which had facilities consisting "of a single main track together with signal and wire facilities, and, in addition, a portion of a double end siding which was used for passing purposes, all located at grade." In due course, the Authority accomplished a crossing of its three-lane Parkway under the railroad by constructing, at the Authority's expense, a viaduct to carry the existing single main line track, wire and signal facilities of the railroad, eliminating the double end siding, and leaving no room for the construction of any additional main line track on the viaduct. On September 22, 1953 the Authority filed its verified complaint in the Law Division, seeking the acquisition of an easement on land described therein and approximating 3.42 acres; the Authority prayed for (1) an adjudication that it had the right to construct and maintain the Parkway under the tracks and facilities and across the right of way of the Central Railroad without compensation "for use of or entry upon such right of way," and (2) in the alternative, that condemnation commissioners be appointed under R.S. 20:1-1 et seq. A stipulation was entered into by the parties stating the facts hereinbefore set forth and asserting that in the course of the Parkway construction the Authority had made "substantial excavations from the lands which are the subject matter of this action and portions of such land are now occupied by Parkway road bed and fills and slopes needed for the Parkway as well as the viaduct." The parties also agreed that "of the land which is the subject matter of the action no more than an area of Fifty-three (53) feet wide, including the present viaduct is owned or controlled by the defendant railroad as a right of way for its railroad" and that "the remainder of the said lands are not and were
not used for railroad purposes or needed therefor and any use thereof by the plaintiff is compensable by agreement or condemnation."
Upon the filing of the verified complaint the Law Division issued an order to show cause and a general appearance was entered by the defendants. The single issue presented to Judge Lloyd in the Law Division turned on the question of whether section 9 of the 1847 act incorporating the railroad imposed a duty upon it with respect to future as well as pre-existing public highways. Judge Lloyd expressly found that it did and on April 15, 1955 he entered a judgment which declared that the Authority had the right to construct its Parkway across the railroad's right of way (comprising a strip no more than 53 feet wide) without compensation "for use of or entry upon such right of way"; the judgment provided that "the action shall proceed as a conventional condemnation with respect to the remainder of the property described in the complaint." After the defendants filed their notice of appeal from the judgment the parties entered into a stipulation dated September 14, 1955 that the section of the railroad which is referred to in the complaint "was constructed after April 2, 1873." The Authority has moved to enlarge the record on appeal by the inclusion of this stipulation and we see no reason why its motion should not now be granted. See Const. 1947, Art. VI, § V, par. 3; R.R. 1:5-4. Cf. Devlin v. Surgent, 18 N.J. 148 (1955); Kelley v. Curtiss, 16 N.J. 265 (1954).
The railroad now contends, as it did below, that section 9 of its charter relates "only to roads which were in existence when the railroad was built" and it relies primarily on Morris Canal & Banking Co. v. State, 24 N.J.L. 62 (Sup. Ct. 1853); Morris & Essex R.R. Co. v. Orange, 63 N.J.L. 252 (E. & A. 1899); and West Jersey & Seashore R.R. Co. v. Woodbury, 80 N.J. Eq. 412 (Ch. 1912). On the other hand, the Authority asserts that the broad language and purposes of section 9 make it clearly applicable to future as well as existing highways and it relies primarily on the views expressed by Chief Justice Beasley in State v. Central
R.R. Co., 32 N.J.L. 220 (Sup. Ct. 1867), by Justice Dixon in Morris & Essex R.R. Co. v. Orange, supra, 63 N.J.L., at 274, and by Justice Swayze in State v. Lehigh Valley R.R. Co., 89 N.J.L. 48 (Sup. Ct. 1916), affirmed 90 N.J.L. 340 (E. & A. 1917). In the Morris Canal case, supra, the charter provided that "when the canal shall cross any public road or farm" it shall be the duty of the company to construct and maintain sufficient bridges; the court in holding that this referred only to pre-existing roads was careful to point out that its determination had reference to the particular charter in question and that provisions in other charters are "couched in different language, which will admit of, and perhaps may require, a different construction." In the Morris & Essex R.R. Co. case, supra, the majority opinion seemingly accepted the position (not there disputed by the parties) that the railroad was at least entitled to nominal damages on the laying of a new highway over its tracks. The majority did not discuss the railroad's charter provision (similar to section 9 in the instant matter) but it was quoted by Justice Dixon in his concurring opinion; Justice Dixon unequivocally expressed the view that it referred to "highways laid across the railroad at any time." In the West Jersey & Seashore R.R. Co. case, supra, Vice-Chancellor Leaming considered the Morris & Essex R.R. case, supra, as a holding that the charter provision applied only to pre-existing roads.
In the Central R.R. Co. case, supra, the railroad altered an intersecting highway and relied upon section 9 of its charter as furnishing authority for its action. In discussing that section Chief Justice Beasley noted that (1) it imposed a duty on the company in favor of the public, (2) it was to be taken "most strongly against the corporation" although it was to receive a reasonable construction, and (3) it imposed a "continuing duty" which, in its performance, "must be measured by circumstances." See Inhabitants of Palmyra v. Pennsylvania R.R. Co., 62 N.J. Eq. 601, 609 (Ch. 1901), affirmed 63 N.J. ...