Read v. City of Camden

— 371 — The opinion of the court was delivered by Dixon, J. Bridge avenue, in the city of Camden, was one ’hundred feet wide, running from the Delaware river eastwardly, and through it were laid the tracks of the Pennsylvania Railroad Company. Second street, sixty-six feet wide, ■ crosses it at about right angles. The plaintiff in error owns land fronting on the west side of Second street, south of Bridge avenue. On September 26th, 1889, the city council of Camden passed an ordinance with these provisions: That a strip sixty feet wide on the north side of Bridge avenue, extending from Fourth street westerly across Second street to the river, should be vacated; that Second street for some distance north of Bridge avenue should be vacated; that the Pennsylvania Railroad Company should remove its tracks, which were on Bridge avenue west of Fourth street, to the said strip of sixty feet on which the common highway was vacated, and should • construct, in the westerly half of Second street, an iron bridge over its tracks, with the necessary approaches, extending north •over the vacated portion of Second' street and south along the westerly half of Second street to a point beyond the plaintiff’s land; and that at the junction of Bridge avenue . and Second street the tracks should be depressed three feet, so as to leave a clear space of twenty feet in height between the rails and the bridge. It provided also for securing the pay■ment of the whole expense by the railroad company, and was not to take effect until the company should execute an agreement with the city to comply with its terms. The plaintiff in error obtained a writ of certiorari to review this ordinance and the proceedings taken under it, and the • Supreme Court having affirmed them, she now prosecutes this writ of error. The first question for decision arises on the claim of the •defendants that the plaintiff has no locum standi to maintain • a writ for the purpose of setting aside the proceedings. Clearly she has, because the ordinance provides for the erection of an embankment in front of her private property, upon — 372 — a part of Second street, of which the fee belongs to her. She-is entitled to question the right of the city to use that land in the manner proposed. It may be that there are provisions in this ordinance which, if they stood alone, she would not be-permitted to impugn for lack of private interest, but as the-ordinance has only a single object, to the attainment of which-each of its provisions is designed to contribute, and which is-set up as the sole justification for the embankment on her-property, she becomes entitled to have the entire scheme reviewed. The chief objections made on behalf of the plaintiff to the-proceedings under review, rest upon a denial of the power of the city council in the premises. It is denied that the council' can vacate Bridge avenue or Second street, because they are-dedicated streets and not streets laid out by formal municipal procedure; it is denied that the council can vacate part of a-street longitudinally, so as to make it narrower, as is done in-the case of Bridge avenue; and.it is. denied that the council, can change the grade of Second street, which has been built upon, without “ the consent of a majority of owners in interest of the lots fronting on the part proposed to be altered,”' according to section 72 of the Road act. Rev., p. 1009. But we think all of these denials are fully answered by the-statute of March 19th, 1874 (Rev., p. 944), which enacts “that the proper municipal authorities of any city of this state be and they are hereby authorized and empowered to-enter into such contracts with any of the railroad companies, whose roads enter their cities, respectively, to secure greater-safety to persons and property therein, whereby the said railroad companies may relocate, change or elevate their railroads within said cities, or either of them, as in the judgment of such municipal authorities, respectively, may be best adapted to secure the safety of lives and property and promote the interests of said cities, respectively, and for that purpose shall have power to vacate, alter the lines and change the grades of any streets or highways therein, and to do all such acts as may — 373 — be necessary and proper to effectually carry out such contracts.” The avowed object of this statute is highly beneficent, and, “therefore, its provisions tending towards the accomplishment of that object should be liberally construed. Under such a •construction, the delegation of power “ to vacate any street ” plainly cannot be confined to those streets which originated in some particular mode, and we think it includes any part of a -street, either transverse or longitudinal, when the vacation of such part aids in attaining the desired result. So, the power •of changing grades is given in terms which do not admit of ■the idea that its exercise was to be dependent on the consent of abutting owners; to that extent this statute, in order to •carry out its purpose, supersedes section 73 of the Road act. The authority of the council appears to be ample. Rut the plaintiff insists that the work to be done on Second street is not a “ change of grade ” upon the street, because the bridge to be built cannot be deemed a part of the street, and also because the bridge and its approaches are to occupy only -one-half of the width of the street. This contention is not valid. -A street is only an improved •public way through a town or city, and whether the way rests •immediately upon the solid ground or is supported above it, •like a bridge, it may still be called a street. Ho doubt the legislature may use the terms “ street,” “ road ” and “ highway ” in a sense which excludes bridges in their route, but, since, in the act of 1874, the power to change the grades of •streets and highways was evidently conferred in order that travel thereon might pass over or under intersecting railroads, “the legislature must have intended to include bridges as a part of the streets and highways at their new grade. Hor is there •anything illegal in the establishment of different grades for •different longitudinal sections of a street. Sidewalks and carriage-ways are common instances of such different grades. When, as here, there may be sufficient reason for greater divergence, that is not illegal. It was within the discretion of the — 374 — council to determine whether the embankment and bridge-should occupy the whole width of the street or not. It is further insisted that this ordinance goes beyond the power of council, in that it purports to “authorize, empower- and direct” the railroad company to move its tracks to that part of Bridge avenue which is vacated, the plaintiff contending-that, under her deeds which grant “the free use of all the-public streets and alleys as laid out in the town plot of Camden,” she has private rights in that portion of Bridge avenue-which are not subject to the disposition of the council. If this ordinance should be interpreted as an actual grant to the company of the right to place and maintain its tracks-on the land indicated, then this private claim of the plaintiff would call for investigation; but it should not be so interpreted. By the vacation of the street the council terminated; all public rights and duties therein, and, of course, could not; confer upon the company any power or authority over the-same. As against private interests in the laud, the company must establish its rights on some other basis than this ordinance. Whether it has such rights cannot be determined on the testimony now before us. The clause of the ordinance alluded to is evidently intended-to be only a direction to the company to remove its tracks from-the remaining forty feet of the avenue, and to make such, removal one of the terms of the arrangement which the ordinance is designed to carry out. But there is one provision of this ordinance which is inconsistent with and, if effectuated, defeats the main object in view. This is the clause vacating Second street for some distance-north of Bridge avenue. On this part of Second street a large-section of the northerly approach to the bridge must rest, and,., consequently, by the surrender of all the public rights therein,, the council deprives the public of the right to use this approach,, and thus destroys the public utility of the entire structure.. The purpose of this vacation we have not been able to discover ; but, so far as we can see, its effect is to render the whole-enterprise abortive, as an effort to subserve public interests.. — 375 — Instead of being a reasonable means of conducting public travel through Second street over the railroad above the risk of collision with trains, the embankment of which the plaintiff complains becomes, under this provision of the ordinance, only an approach to a small patch of private land where the traveler may be compelled by the owner to turn back and retrace his steps to the former level of the street. Because of this feature of the ordinance, we think the scheme is unreasonable, and therefore the ordinance and all proceedings under it should be set aside. Let the judgment of the Supreme Court be reversed. For affirmance — Hone. For reversal — The Chancellor, Chief Justice, Dixon, Garrison, Mague, Reed, Van Syckel, Werts, Bogert, Brown, Clement, Krueger, Smith, Whitaker. 14.