Thompson v. Ocean City Railroad

The opinion of the court was delivered by Depue, J. The Ocean City Railroad Company, to which the right to occupy Plaven avenue longitudinally with its [77] tracks was granted by this ordinance, is not a street railway company. It was incorporated under the General Railroad act and located a double-track railroad ten miles long, as a branch of the South Jersey Railroad Company. The ordinance authorizes the laying of the company’s tracks longitudinally through the avenue, from Fifty-ninth street to First street. An inspection of the ordinance will disclose how completely the city council proposes to surrender the public avenue to the use of the railroad company. The legislature has not conferred upon these companies the capacity to acquire at will the right to make use of' public streets or highways longitudinally for the roadbed of a railroad, nor has it granted to boroughs, under the power to regulate streets, the power to make such a diversion of the streets to the use of these companies. A charter authorizing the construction of a railroad between designated points, the exact location of the road between the specified termini being left in the company’s discretion, is an implied authority to cross highways along the route, but confers no right to occupy longitudinally streets or highways lying in the general route of the road. The authority to make such a use of streets or highways must be expressly given, or if conferred by implication, it must be by a necessary implication. Morris and Essex Railroad Co. v. Newark, 2 Stock. 352; Newark and New York Railroad Co. v. Newark, 8 C. E. Gr. 515; Hoboken Land and Improvement Co. v. Hoboken, 6 Vroom 205; Adams v. Disston, 15 Id. 662; Raritan Township v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 11; 1 Wood Railw. 746. The statute under which this company was organized contains no words or expression from which an implication can be deduced which would justify the appropriation of streets and highways to the uses of these companies. Nor has the legislature conferred upon borough governments power to subject the streets and avenues within the corporate limits to the use contemplated by this ordinance. The ordinance is illegal. The prosecutor is the owner of [78] lands on both sides of- Haven avenue between Twenty-fourth and Twenty-fifth streets, and is also a taxpayer within the city. He is entitled to have the entire ordinance set aside, and it is so ordered, with costs.