Civil action in lieu of prerogative writ.
This suit was instituted as a complaint in lieu of prerogative writ, but the relief demanded was injunctive and for a declaratory judgment. By stipulation, both parties moved for summary judgment on the pleadings, agreed facts and exhibits. Briefs were filed and argument had.
Verona and Cedar Grove are adjacent municipalities, the line dividing them running roughly parallel with Bentley
Road in Cedar Grove. In Verona, Westland Road presently ends at the borough line, and directly across the borough line in Cedar Grove lies Lot 7 in Block 18, having approximately 50 foot frontage on Bentley Road. In March 1954 Verona purchased this lot from the then owner. Prior to the purchase, and on March 1, 1954, Durante, the then owner of Lot 7, Block 18 in Cedar Grove, and Verona entered into an agreement reciting that whereas the mayor and council of Verona deemed it advantageous to open and construct Westland Road from the borough line to Bentley Road in Cedar Grove, Durante agreed to pay the full cost of the construction of the proposed extension. The agreement between Durante and Verona further recited that "If necessary, the said John J. Durante will obtain the approval of the proper authorities of the Township of Cedar Grove in connection with the improving of the street aforesaid." On March 3, 1954 Verona passed a resolution that Westland Road be opened and constructed, that the cost be paid by Durante, and reciting that Durante, if need be, shall obtain the approval of Cedar Grove for the proposed extension. Some time prior to the institution of the present suit Verona informed Cedar Grove of its intention to lay out and improve the proposed extension of Westland Road, and negotiations were had which resulted in the passage of a resolution by Cedar Grove, granting Verona permission so to do upon certain conditions. Subsequently, that resolution was rescinded because of the inability of Verona to comply with the conditions therein called for.
In its prayer for relief Verona asks that the defendant be restrained from instituting proceedings having for their object an injunction restraining or preventing Verona from constructing the proposed Westland Road extension. As to this prayer, it is elementary that injunctive relief cannot be granted against some unspecified future action on the part of Cedar Grove. Its next prayer for relief is for a declaratory judgment declaring the rights of the parties to lay out, open and construct proposed Westland Road extension. Verona claims the right to extend
Westland Road by virtue of N.J.S.A. 40:56-2, the pertinent portion of which reads as follows:
"Whenever the governing body of a municipality may deem it advantageous to lay out, open and construct a public street or highway through such municipality into and through an adjoining municipality in order to connect any street or highway therein with a street or highway in the first municipality, it may acquire the necessary land in such adjoining municipality by purchase or condemnation, and lay out, open and construct such street or highway as it may deem necessary.
The laying out, opening and construction of such street or highway may be carried out as a local improvement and the benefits therefrom assessed on any lands or real estate benefitted thereby in the municipality laying out, opening and constructing such street or highway."
and it argues that it has authority to acquire the land on which to extend Westland Road by virtue of N.J.S.A. 40:56-7.
"Any municipality may purchase, condemn, or otherwise acquire any real estate or right or interest therein, useful or necessary for the making of such improvement, located within or without the municipality, and any personal property, useful or necessary therefor, may hire and employ all such engineers, surveyors, officers and employees; construct or cause to be constructed any work or thing deemed necessary for the making of any such improvement; enter into any contract or agreement for the acquisition of any such property ...