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Good Deal of Ivy Hill Inc. v. City of Newark

Decided: May 9, 1960.


For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Francis, J.


Plaintiff is the lessee of a tract of land located wholly in the Town of Maplewood, New Jersey. Its westerly boundary fronts on a thoroughfare known as Irvington Avenue in that town; the easterly and southerly property lines border on the City of Newark; the northerly line is 341 feet long, more or less, all but 82.71 feet of which borders on Newark. A part of this northerly sideline, 60.25 feet in length, runs along the southern extremity of Eastern Parkway, a public street running generally north and south, and located wholly in the City of Newark, which comes to a dead end at that point. The terminus of the street at that portion of plaintiff's sideline is the boundary line between the two municipalities. No part of Eastern Parkway is in Maplewood and no part of plaintiff's property is in Newark.

The section of Newark through which Eastern Parkway passes and dead ends is a substantial one-family home district. The city erected (at a time not fixed in the testimony) and maintained for at least 15 years prior to October 1957 a two-rail wooden barrier, painted white, at the dead end of the street. This was long before plaintiff ever acquired its leasehold interest in the Maplewood property. The barrier extended across the full width of the vehicular traveled portion and was intended to mark the end of the roadway. It was designed in part at least as a safety measure, calling attention to the limitation on travel and serving to prevent vehicle operators from running upon plaintiff's land and perhaps suffering injurious consequences.

Plaintiff leased the Maplewood premises for the purpose of operating a supermarket. Prior thereto its representative

had made a survey of the area and was fully familiar with the barrier at the end of Eastern Parkway. The market, entrance to which was on Irvington Avenue in Maplewood, opened for business on October 14, 1958. Two weeks prior thereto Newark had declined to accede to a request by plaintiff that the barricade be removed. In fact, two days after the opening, the city extended it beyond the curb line, thereby blocking the ends of the public sidewalks on both sides of the street. The rear of the supermarket building, where the loading and unloading platform is located, is fairly close to the railing. Other nearby portions of the grounds are used for customer parking. There is no doubt that it would be a valuable accommodation to the plaintiff if the trucks and parkers could invade Newark's residential area by using Eastern Parkway as a means of entrance, and particularly of exit.

It is undisputed that Eastern Parkway was never used for ingress or egress from plaintiff's lessor's premises. And there is not the slightest intimation in the record that any condition of the back title would justify a claim of right to do so. It is of interest to note that at the time of the hearing herein, an additional entranceway from Irvington Avenue was under construction by plaintiff.

The present action was instituted nine days after plaintiff's opening. The relief sought is a mandatory injunction requiring removal of the barrier and damages for loss of business allegedly resulting from the failure to have adequate entrance and exit passages for its customers. The trial court denied the injunction and entered judgment for the city. Review was then sought in the Appellate Division and we certified the matter before argument in that tribunal.

A municipal corporation is a creature of the Legislature. Its powers are derived from that source and to some extent from the Constitution. See, e.g., Art. 4, § 7, par. 11, 1947 Constitution. Its boundaries are established by the Legislature. Lower Township v. City of Wildwood, 130 N.J.L. 186 (E. & A. 1943), affirming 129 N.J.L. 22

(Sup. Ct. 1942). Such boundaries mark the limit of the local government's jurisdiction and authority. 2 McQuillin, Municipal Corporations (3 d ed. 1949), § 7.02, p. 256. No extramural authority exists unless expressly granted. 2 McQuillin, supra, § 10.07, p. 590. For example, see Aviation Services v. Bd. of Adjustment of Hanover Tp., 20 N.J. 275, 282-283 (1956); Borough of Verona v. Township of Cedar Grove, 49 N.J. Super. 293 (Law Div. 1958).

Obviously, a municipal corporation may lay out and construct public streets within its borders. Such streets may be treated as a local improvement and the property owners benefited may be assessed according to the benefits received. N.J.S.A. 40:56-1. Authority exists in some situations to extend a road into an adjoining municipality. N.J.S.A. 40:56-3; Borough of Verona v. Township of Cedar Grove, supra. In such case, if the extension is declared a local improvement, assessments for benefits may be imposed "on any lands or real estate benefited thereby in the municipality laying out, opening and constructing such street or highway." R.S. 40:56-2. (Emphasis added) The legislative implication is plain that property owners in the adjoining municipality cannot be subjected to a charge for the improvement.

Undoubtedly a local governing body may build a road and terminate it at the boundary line of the municipality, or some distance short of that line. There is no duty to go farther in order to provide access to the road for a citizen of the adjoining community whose land is just beyond the geographical limit. In any event, the municipality creating the improvement has ...

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