Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges.
The appellees brought suit against the appellant railroad company to recover for personal injuries and property damage sustained when an automobile owned and operated by the appellee Joseph Chiara, upon April 9, 1935, at approximately 2:15 a.m., ran into a concrete fundation serving as the base of the central support of a railroad bridge erected and maintained by the appllant and crossing Henderson street, a public street or highway in the city of Jersey City, N.J. The appellee James Chiara was a passenger in the automobile.
The sole question presented for our consideration is whether or not the structure in question was a lawful one, sanctioned by legislative and municipal authority. Under the law of New Jersey, as construed by the Court of Errors and Appeals, any unlawful obstruction of a highway is prima facie a nuisance and the party responsible for it is liable in damages to one injured thereby. It is euqally well settled that the Legislature may legalize what otherwise might be a nuisance. Lorentz v. Public Service R. Co., 103 N.J.L. 104, 106, 134 A. 818, 49 A.L.R. 989: Hinchman v. Paterson Horse Railway Co., 17 N.J.Eq. 75, 86 Am.Dec. 252; Halsey v. Rapid Transit St. R. Co., 47 N.J.Eq. 380, 20 A. 859; Paterson Railway Co. v. Grundy, 51 N.J.Eq. 213, 26 A. 788; Beseman v. Pennsylvania Railroad Co., 50 N.J.L. 235, 13 A. 164; State v. Lackawanna Railroad Co., 84 N.J.L. 289, 86 A. 386; State v. Riggs, 91 N.J.L. 456, 106 A. 216, appeal dismissed 92 N.J.L. 575, 106 A. 467; Garrett v. State, 49 N.J.L. 94, 693, 7 A. 29, 60 Am.Rep. 592; Simmons v. Paterson, 60 N.J.Eq. 385, 45 A. 995, 48 L.R.A. 717, 83 Am.St.Rep. 642; State v. Erie Railroad Co., 84 N.J.L. 661, 87 A. 141, 46 L.R.A., N.S., 117. If the structure here in question is in fact a lawful one, members of the public, including the appellees, are required to take notice of its presence and situation, and the learned trial judge should have directed a verdict for the appellant as prayed for by it.
The facts may be briefly stated as follows: Upon August 28, 1928, the board of commissioners of the mayor and aldermen of Jersey City passed an ordinance authorizing the appellant, in accordance with blueprints submitted by it, to build a bridge supported by " * * * circular concrete columns located along the center line of the street and along each proposed curb line.* * * " An examination of these prints discloses that the center piers, contemplated as support for the bridge, were to be sunk into the surface of the street. Due to the presence of water mains and sewers at this point, however, the bridge was not constructed as provided by the ordinance of August 28, 1929, but in fact the center piers of the bridge were rested upon the concrete foundation heretofore referred to.After the bridge was constructed, and in the latter part of January, 1934, the appellant, being aware that the bridge was not constructed as provided by the authorizing ordinance, petitioned the board of commissioners to the end that it, by ordinance, might ratify and that it, by ordinance, might ratify and confirm the " * * * construction of the foundations of the center line columns of said bridge and of said concrete chamber * * * " and grant permission to the appellant " * * * to maintain said bridge and all parts thereof, including the foundations of said center line columns as constructed. * * * " Upon March 6, 1934, this ratifying ordinance was passed by the board of commissioners.
The appellees make two contentions: First, that the board of commissioners was without power to ratify the structure of the bridge as it was actually built by the ratifying ordinance of March 6, 1934; second, that the bridge as constructed, even if built pursuant to an authorizing ordinance, was none the less a nuisance because it was not sanctioned by legislative authority.
The first contention may be disposed of briefly by stating that we can see no reason why municipal authorities by ordinance cannot ratify acts done precisely as an individual or corporation may do so. To hold otherwise, in our opinion, would be to place an undue restraint upon the acts of municipal authorities in the exercise of functions imposed upon them by law.The appllees cite no authority for the proposition so advanced by them and a search discloses none. We are therefore constrained to reject this suggestion.
The second contention advanced by the appellees is plausible and requires careful consideration. It may be stated as follows: The appellees contend that the bridge as constructed with the concrete foundation supporting the center piers placed in the middle line of Henderson street is not authorized by law and in fact is within the specific prohibition of section 27 of "An Act concerning railroads," R.S.N.J. 1937, 48:12-50, 3 Comp. St. New Jersey, 1910, p. 4232, Revision of 1903, as amended by P.L.N.J. 1906, p. 663. This is as follows:
"27. Crossings in cities and towns above or below grade; permits; bridges over streets or highways. - Where any railroad shall cross any street or highway in any city or town it shall be either above or below the grade thereof, at such distance as shall not interfere with the free and uninterrupted use of such street or highway, unless the common council or other governing body of the city (or town, incorporated as such) in charge of the streets, shall grant permission to the railroad company to cross such street or highway at grade. Provided, that such permission shall not be necessary for the purpose of crossing at grade any street or highway which at the time of the acquirement of the right of way is not in use for pedestrains or wagons, either at the point of crossing or at some other point between the crossing the nearest terminus of such street or highway; where a railroad is constructed above the grade of any street or highway by a bridge, it shall be lawful for the company to erect piers for the support and safety of the bridge, which piers may be located at the outer edge of the wagonway, so as not to encroach thereon, and may extend thence into the sidewalk, or place left therefor; provided, that from the land on each side of said street or highway, so much shall be added to the sidewalk on that side and thrown open to public use for such purpose, as shall be occupied by the pier on that side."
In other words, it is the contention of the appellees that no railroad bridge whether purporting to be authorized by municipal authority or not may encroach upon the wagonway of a street. If it does so, as in the case at bar, it constitutes a nuisance and any one injured thereby may recover his damages.
The appellant for its part contends that its structure, as built and maintained and ratified by the ordinance of the board of commissioners of March 6, 1934, was authorized by section 30 of chapter 145, page 377, of the Pamphlet Laws of New Jersey of 1925, R.S.N.J. 1937, 48:12-79, Comp. St. Supp. N.J. 1930, § 170 - 30, entitled, "An act to amend an act entitled 'An act concerning railroads, Revision of 1903,'" and is therefore a lawful structure. The act referred to states as follows:
"30. In any municipality it shall be lawful for the proper municipal authorities to enter into such contracts with any railroad company or companies whose roads may lie wholly or partially within the municipality or whose route has been located therein as will secure greater safety to persons or property therein, or will facilitate the construction therein or maintenance of other than grade crossings of streets, highways or other railroads, or will provide for increased or improved station or terminal facilities and transportation service, or will improve the surroundings of or make more convenient the access to a station or stations of such railroad within such municipality, and for such purposes the municipal authorities may construct sidewalks on, pave, repave, curb, gutter, lay out, open, vacate, or alter the lines and change the grade of any streets, highways, squares or other public areas or places, and may lay out, improve and maintain public parks, plazas, or other public places, as a part of such improvements, and the railroad company may locate, relocate, change, alter grades of, depress or elevate any of its railroad tracks, bridges or facilities, and construct new or additonal tracks and transportation or station facilities as shall be specified and provided for in such contract, and for the purposes of this act such municipality and such railroad company may take by purchase or condemnation any lands required for such improvements, and make such changes or conveyances of their respective lands or any interest therein as will facilitate said work and the cost and expenses of any such lands, changes and improvements shall be borne by such municipality and such railroad company in such shares or proportions as may be provided in said contract."
The appellant contends that section 27, heretofore referred to, authorizes a railroad company to pass over any street by way of a bridge, without specific authority by way of ordinance from the municipal authorities so long as the bridge does not encroach upon the wagonway of the street, but that section 30 provides a method whereby legal authorization may be procured from ...