those of the plaintiff upon whom, in addition and without recourse, fell the heavy cost of printing the case necessary to obtain a correction of the error into which the defendant had led the trial court. Under these circumstances, and in view of the analogous practice of the King's Bench, even if the defendant were to obtain a second verdict, which we are not to assume that it would, if the judge instructed the jury as the Court of Errors thought that he should, we think that there is no justice in saddling the defendant's witness fees at either trial upon the plaintiff as an incidence of the discontinuance of its action; and this also applies to other circuit costs. The defendant therefore takes nothing by his motion, but under the circumstances no costs will be allowed to the plaintiff. (80 N. J. L. 171) SHILOH TURNPIKE CO. v. BATES et al. (Supreme Court of New Jersey. June 13, 1910.) (Syllabus by the Court.) 1. CORPORATIONS (§ 38*)—CHARTER-RIGHT TO ALTER, SUSPEND, AND REPEAL DECREE. Certiorari by the Shiloh Turnpike Company against George Bates and others to re| view road proceedings. Affirmed. Argued February term, 1910, before GARRISON, SWAYZE, and PARKER, JJ. Walter H. Bacon, for prosecutor. Hampton & Fithian, for respondents. PARKER, J. The order and proceedings brought up by this writ rest upon section 1 of the "Act relating to turnpike companies" (P. L. 1882, p. 29; 3 Gen. St. p. 3695, §§ 36, 37), as amended by P. L. 1892, p. 194 (3 Gen. St. p. 3696, pl. 42). For a better understanding of the case, it is advisable to insert the section at length. It is as follows: "That if any turnpike company shall not keep its road and bridges in repair, it shall be the duty of any judge of the court of common pleas of the county in which said road or the part thereof complained of, or bridge is situated, upon complaint being made to him in writing, signed by ten freeholders, residents on the line of said road, within said county, stating the bridge or part of the road that is out of repair, and specifying the particular defect, and after five days' notice in writing to said company, specifying the particular part of the road or bridge, and the particular defect complained of, and after hearing the parties, if the said company shall have continued to take toll on that part of the road so out of repair, after being notified as aforesaid, without having first amended or repaired the bridge or part of the road complained of, to appoint under his hand and seal three judicious, disinterested freeholders of the county in which said road, or the part thereof complained of, or bridge, is situated, not residing in any township, borough, or ward through which said road passes, who, having been duly qualified according to law, to act impartially in the case, shall proceed to view and examine the said part of the turnpike road or bridge so complained of, and report to the said judge, 3. CONSTITUTIONAL LAW (§ 306*)-DUE PRO-under the hands and seals of any two of in writing under their hands and seals, or The sixth section of the general corporation act of 1846 (Nixon's Dig. p. 168), providing that "the charter of every corporation which shall thereafter be granted by the Legislature shall be subject to alteration, suspension and repeal, in the discretion of the Legislature," operated as effectively in reserving the rights of alteration, suspension, and repeal as if it had been inserted in each charter thereafter granted. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 119-127; Dec. Dig. § 38.*] 2. TURNPIKES AND TOLL ROADS (§ 11*)TURNPIKE COMPANIES-FAILURE TO MAINTAIN ROAD-Procedure. Section 1 of the "Act relating to turnpike companies" (P. L. 1882, p. 29, as amended by P. L. 1892, p. 194), prescribing a mode of procedure against a turnpike company for failure to maintain its road, superseded a similar but not identical method of procedure contained in the charter of prosecutor granted in 1866 (P. L. p. 989), and therefore subject to the above provision of the corporation act. [Ed. Note. For other cases, see Turnpikes and Toll Roads, Dec. Dig. § 11.*] CESS OF LAW. In view of the substantial similarity of procedure and identity of remedy provided both in the charter and the act of 1892 (P. L. p. 194), the latter act is not unconstitutional as depriving prosecutor of property without due process of law, though the procedure be summary in its nature; such a procedure being agreed to by prosecutor in accepting its charter. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. 88 928-949; Dec. Dig. § 306.*] them, whether it be in such state as the law requires it to be kept, and if the report be unfavorable to said road, the said judge shall immediately, in writing under his hand and seal, order the keeper or keepers of the gates or turnpikes to keep open the same until otherwise ordered; and if said keeper or keepers shall, notwithstanding the order of the said judge to open said gates or turn 4. TURNPIKES AND TOLL ROADS (§ 22*)--FAIL- pikes, exact toll of travelers, the said comURE TO MAINTAIN ROADS-PENALTIES-COM-pany shall for each offense forfeit and pay PLAINT SUFFICIENCY. ten dollars, to be sued for by any person who shall prosecute for the same, in an action of debt, with costs of suit; and the said judge shall be allowed for his services one dollar, and the persons appointed one dol lar each, to be paid by the company; and upon satisfactory proof before the said judge, is in fact out of repair, we can see no better way of stating that fact. In Braden v. Berry, 20 Wend. (N. Y.) 55, it was said that, if the whole road be out of repair, it must be so stated in totidem verbis. That has been done in this case. that said company shall have repaired or whole road within certain limits is in bad amended said road or bridge in the particu- order, and that it is full of holes and ruts, lar complained of, he shall by license, un- covered with sand, and insufficiently arched der his hand and seal, directed to the toll for drainage. Prosecutor's claim is tantagatherers, permit the gates or turnpikes to mount to a demurrer, and, like a demurrer, be shut, and the toll collected as before, and must for present purposes be taken as conthe said fee shall be allowed and paid as ceding the facts properly alleged. We regard before directed, but if, on the view before the complaint as clearly specific on the charmentioned, the report of the persons appoint-acter of the defects; and, if the whole road ed, or a majority of them shall be in favor of the company, the same fees shall be allowed as before prescribed, and be paid by the persons making the complaint." Pursuant to this statute, 10 freeholders who were qualified as prescribed made and signed a written complaint to the court specifying the parts of the road complained of as "all of the said turnpike road from the point where the Salem county line crosses the public road from Shiloh to Marlborough, to the western end of Broad street in the city of Bridge ton"; and the alleged defects thus: "And that the particular defects in the said parts of said turnpike road are that said parts are full of holes and ruts and covered with sand and are not sufficiently arched and drained to make and keep the same dry." Upon no-pike charters. State v. Williamstown & Good tice of this complaint as prescribed by the statute and hearing thereon, the court of common pleas made an order appointing three freeholders to view the part of the road complained of, and at this point the certiorari was allowed. Finally it is said that the act of 1892 is unconstitutional, in that it subjects prosecutor to a summary inquiry which may result in opening its road to the public as a free road, without any right to a trial by jury, or of appeal, thus depriving it of its property without due process of law. The answer to this is that a procedure substantially of this character is part of the very charter under which prosecutor was organized. It was at that time an established precedent in turn Intent Co., 24 N. J. Law, 547 (charter dated 1852 [P. L. 1852, p. 349]); State, Mead, prosecutor, v. Trenton & Allentown Turnpike Co., 34 N. J. Law, 182 (charter dated 1856 [P. L. 1856, p. 202]). Many others of sim ilar character exist. P. L. 1837, p. 283, § The first and second reasons invoke the 13; P. L. 1852, p. 440, § 13; P. L. 1853, p. charter of the turnpike company, prosecutor 148, § 14; P. L. 1854, p. 59, § 13; P. L. 1855, (P. L. 1866, p. 989), and especially the nine- p. 716, § 14; P. L. 1856, p. 119, § 18; P. L. teenth section thereof, as constituting an ir- 1858, p. 375, § 19; P. L. 1861, p. 416, § 12; repealable contract and thus affording pros- P. L. 1863, p. 261, § 18; P. L. 1866, p. 498, ecutor immunity from attack under the act § 14; Id. p. 742, § 19; Id. p. 796, § 19; of 1882. The nineteenth section provided a Hood's Index (Ed. 1905) p. 1077 et seq., tit. procedure consisting of complaint, appoint- "Turnpike Companies." It appears in "an ment of commission to view the road and act authorizing the formation of plank road opening of gates on an adverse report, very companies" (P. L. 1852, p. 95 [Rev. 1877, p. much as enacted by the acts of 1882 and 827]) as section 21. See Bergen Turnpike 1892. We need not quote the entire section. Co. v. State, 25 N. J. Law, 554. No doubt For present purposes it is enough to say that some good reason existed for so drastic and by section 6 the corporation act of 1846 summary a remedy. At all events, a read(Statute 1847, p. 136 et seq.), it was enact-ing of section 19 of prosecutor's charter, aled that the charter of every corporation which should thereafter be granted by the Legislature should be subject to alteration, suspension, and repeal in the discretion of the Legislature. This provision in effect became a part of every charter thereafter granted, to which by its terms it was applicable. State, Morris & Essex R. R. v. Commissioner of R. R. Taxation, 37 N. J. Law, 228, 237, and cases cited; Tomlinson v. Jessup, 15 Wall. 454, 21 L. Ed. 204. The prosecutor's charter was therefore no protection against the act in question, and its cognate provisions were superseded thereby. ready cited, will show that the same remedy was given to the public as by the act of 1892 with somewhat less required by way of procedure. Complaint by 10 freeholders along the line of the road is not required. Simple "complaint" is sufficient. The charter does not say definitely that such complaint must be in writing; or that it shall specify the part of the road complained of, or the character of the defects. The complaint is to be made, not to the common pleas, but to a justice of the peace "who may be disinterested." No notice or hearing is required, but the justice Next, it is claimed that the complaint and appoints forthwith three of the township the notice given in pursuance thereof are committee as viewers. The penalty for disnot specific with respect either to the parts obedience of the order to open gates is $20 of the road complained of, or as to the na- instead of $10, and so on. It is obvious that ture of the alleged defects therein. We un- the act of 1892 is much more favorable to derstand these documents to charge that the the company in its provisions; and the pros76 A.-29 SWAYZE, J. On July 24, 1905, the city of Dover adopted an ordinance for the improvement of the sidewalks of several streets. The ordinance required the improvements specified to be made on both sides of each of the streets, excepting West Blackwell street, and provided for the paving of the walk on the ecutor therefore cannot be heard to complain when the Legislature has substituted this latter act for the section accepted by prosecutor as part of its original contract with the state; especially when, as we have already seen, the right to alter or even wholly repeal the charter was reserved. The order and proceedings brought up are northerly side of that street only, for some affirmed, with costs. (80 N. J. L. 63) LEHIGH VALLEY R. CO. v. MAYOR, 1,384 feet. This distance was along the line of the Morris canal, now controlled by the prosecutors of this writ. The canal at that point was fenced off from the street, and apETC.,parently no sidewalk had theretofore existed, for the ordinance provides that sidewalks on both sides shall be graded, graveled and (Supreme Court of New Jersey. June 13, 1910.) worked to a width of 10 feet from the ex (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS (§ 512*)-PUBLIC IMPROVEMENTS-OBJECTION TO ASSESS MENT-LACHES, In determining whether the prosecutor of a certiorari in a case of a public improvement is barred by laches, a distinction is to be made between a case where the effort is to set aside the proceedings for the improvement itself, and a case where the effort is to set aside the assessment for benefits. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1185-1187; Dec. Dig. § 512.*] 2. MUNICIPAL CORPORATIONS (§ 438*)-PUBLIC IMPROVEMENTS-ASSESSMENT OF BENE FITS. In the ordinary case where a sidewalk is an appendage to the abutting property, essential to its beneficial use, it is proper to impose the entire expense of construction upon the abutting owner; but in a case where the sidewalk is not an appendage to the property, but is built for the accommodation of the general public, a special assessment for its cost must be limited, as in other cases, to the special benefits conferred. [Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. § 1052; Dec. Dig. § 438.*] terior lines of said street, but, as I have said, provides for paving only on the side adjoining the canal. The charter of Dover authorizes the council to pass ordinances for the improvement of sidewalks, including paving and flagging, at the expense of the owner of the abutting property. The company did not improve the sidewalk and pave it, as the ordinance required. The work was done by the city and an attempt made to assess the cost, amounting to $1,522.40, upon the prosecutor as lessee of the Morris Canal. It is this assessment which is brought here by the present writ. The defendant insists that the writ should be dismissed because of the laches of the prosecutor in suing it out. The bill for the cost of the sidewalk was rendered September 16, 1907, and this writ tested October 23, 1907, about five weeks later. The defendant fails to distinguish between an effort to set aside the ordinance and the present proceeding to set aside the assessment of the exDenses upon the prosecutor. The very cases cited in the defendant's brief make this dis 3. MUNICIPAL CORPORATIONS ( 437*)-PUB-tinction plain. Thus, in Rosell v. Neptune LIC IMPROVEMENTS-ASSESSMENT OF BENE FITS. A city by virtue of power given in its char ter to construct sidewalks at the expense of the abutting owner, passed an ordinance for the paving of a sidewalk along the Morris Canal which at that point was fenced off from the highway; the sidewalk on the opposite side of the street, where the houses were located, was not required to be paved; the sidewalk was of no benefit to the owners of the canal. Held, that they could not be subjected to a special assessment for benefits. City, 68 N. J. Law, 509, 53 Atl. 199, the court held that the contract and the mode of its performance were unassailable by reason of the prosecutor's laches, but found that the assessment for the benefits was illegal, and set it aside; and in Tusting v. Asbury Park, 73 N. J. Law, 102, 62 Atl. 183, the distinction was stated with the greatest clearness by Mr. Justice Dixon. The court in that case said that the prosecutor could not be heard with regard to any errors in procedure prior to the assessment, and then proceeded to consider the objections to the assessment. OthCertiorari by the Lehigh Valley Railroader cases which illustrate the distinction are Company against the Mayor, Recorder, Alder-Ropes v. Essex Public Road Board, 37 N. J. Law, 335, and Youngster v. Paterson, 40 N. J. Law, 244. It can hardly be said that the prosecutor was guilty of laches in delaying only five weeks before seeking to review the assessment. No harm could possibly have come to the city by that delay. [Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. § 1051; Dec. Dig. § 437.*] men, and Common Council of Dover to review an ordinance. Assessment under the ordinance set aside. Argued February term, 1910, before GARRISON, SWAYZE, and PARKER, JJ. Collins & Corbin, for prosecutors. Elmer King (Carl V. Vogt, on the brief), for defend ants. Several objections are made to the validity of the proceedings. We think it necessary to consider only the fundamental objection that thority, Van Tassel v. Jersey City, 37 N. J. Law, 128, indicates that this is the correct view, for Mr. Justice Bedle there said that the result of the assessment in that case was to make every lot pay for the expense of grading in front of it, whatever might be the depth or amount of excavation or the height of the filling, and that assessment, he said, was in total disregard of the well-established doctrine in this state that the assessment shall not exceed the benefits. In consequence, that part of the assessment for grading was set aside, and even the assessment for flagging was reduced because it appeared that the cost of excavating and filling the whole sidewalk was included therein. The distinction between cases where the improvement is primarily for the public welfare and only incidentally for the benefit of the landowner, and those where the improvement is primarily for the benefit of the landowner and incidentally for the benefit of the public, was pointed out by Mr. Justice Dixon, in Doughten v. Camden, 71 N. J. Law, 426. We there said that where the improvement was primarily for the public welfare and only incidentally for the benefit of the landowner, the cost could be imposed on particularized property only to the extent to which such property was exceptionally benefited. The judgment in that case was reversed, but on no grounds that affect this statement of the law, nor was it open to question, for, since the constitutional amendments of 1875, no tax can lawfully be laid upon property which is not determined either by the special benefit derived, or by the valuation of the property with respect to which it is laid, upon a uniform rule of valuation at its true value. Jersey City v. Vreeland, 43 N. J. Law, 638. the sidewalk was of no special benefit to the prosecutor, and that, therefore, the prose cutor could not be subjected to a special assessment. The general principles governing special assessments are well settled and it seems almost superfluous to repeat what was so well said by Chief Justice Beasley in the case of Agens v. Newark, 37 N. J. Law, 415. The principle, as he states it, is that the cost of a public improvement may be imposed on particularized property to the extent to which such property is exceptionally benefited, and that any special burden beyond that measure is illegal. His whole argument rests upon the view that unless the particular property is specifically benefited, a special exaction imposed upon it and not shared by other property owners is not taxation, but confiscation. It is true that in discussing assessments for sidewalks he dwelt upon the difference between the sidewalk and the roadway. That difference, as he states it, is that the sidewalk is an appendage to, and part of, the premises to which it is attached, and is so essential to the beneficial use of such premises, that its improvement may well be regarded as a burden belonging to the ownership of the land, and the order or requisition for such improvement, as a police regulation. He adds that it is legitimate to direct that the sidewalk be put in order at the sole expense of the owner of the property to which it is subservient and indispensable, but in criticising the case of Sigler v. Fuller, 34 N. J. Law, 227, he calls attention to the fact that part of the assessment in that case was illegal for the reason that it imposes a part of the cost of the sidewalk upon the owners of property to which the sidewalk was not an appendage. His language makes it quite clear that the only justification for imposing the total cost of the sidewalk upon the owner of abutting property is that the sidewalk is an appendage to that property, essential to its beneficial use or, as he says in other words, "subservient and indispensable." | sidewalk in this case is not an appendage to When this situation is presented, and it is the ordinary situation, it is proper to impose upon the owner the entire expense, and because it is the ordinary situation, there is a presumption in the absence of proof to the contrary, that the sidewalk is an appendage to the property, beneficial and indispensable to it. It was in view of this presumption that this court, speaking through Mr. Justice Fort, said in Van Wagoner v. Paterson, 67 N. J. Law, 455 at page 459, 51 Atl. 922, that the whole cost of sidewalks may be imposed upon abutting property, irrespective of benefits. This did not mean, however, that an arbitrary assessment could be imposed, but that an assessment might be of the whole cost, and need not be proportioned to the benefit received. The very case cited by him as au This present case is a peculiar one and illustrates the danger of a general statement of the law without regard to the essential principle underlying it. It is quite evident that the the property of the canal company, and is of no benefit to that property. It obviously was built for the accommodation of the general public, and we can hardly avoid the conclusion that in directing that the sidewalks on both sides of the other streets be improved, and that the sidewalk be paved for 1,384 feet on West Blackwell street on one side only, and that, too, the side away from the houses, the council of the city was attempting, by an act of arbitrary power, to compel the railroad company as lessee of the canal, to pay for a public improvement of which it did not share the benefit. Such a proceeding is taking property without due process of law, contrary to our constitutional provisions, and the assessment must therefore be set aside with costs. (77 N. J. L. 282) open, notorious, and exclusive possession of said tunnel to the extent that it was capable CONDICT v. ERIE R. CO. et al. (Court of Chancery of New Jersey. June 4, of being owned and possessed," and that any 1910.) rights complainant has acquired are subject 1. EQUITY (8 263*)—PLEADING-Answer-Mo- to defendants' rights. [Ed. Note.-For other cases, see Equity, Cent. Dig. 535; Dec. Dig. § 263.*] 2. EQUITY (§ 339*)-ANSWER AS EVIDENCE. [Ed. Note.-For other cases, see The answer also sets up certain facts relating to the location and construction of the tunnel, and to certain mortgages given by the company which constructed the tunnel, and foreclosure of the mortgages under which defendants claim title. Exceptions have not been taken to any part of the answer as insufficient, but the only motion is to strike out the entire answer, which includes as well the parts of the answer responsive to the allegations re Dig. §§ 685, 710; Dec. Dig. 339,quity, Cent. lating to possession and title, as well as the 3. EQUITY (§ 264*)-PLEADING ANSWER-MOTION TO STRIKE OUT PART. In a suit to quiet title, the allegations in the answer setting up defendant's title could not be struck out on the ground that no title was shown, on a motion under rule 213, allowing objections to pleadings to be made by motion, as the rule was intended to substitute the motion for an exception, and not for a demurrer to an answer, and makes the motion a waiver of the right to demur or except. [Ed. Note.-For other cases, see Equity, Cent. Dig. 536; Dec. Dig. § 264.*] Suit to quiet title by Walter H. Condict against the Erie Railroad Company and others. On motion to strike out answer. Motion denied. Condict, Condict & Boardman, for the mo tion. Cortlandt & R. Wayne Parker, opposed. part setting up defendants' claim. At the argument the motion to strike out the entire answer is based substantially on the reason that the defendants' claim of title as set out in the answer is not a valid claim, either at law or in equity. If this were a valid reason for a motion to strike out so much of the answer as purports to set up defendants' claim, it is no reason whatever for striking out so much of the answer as is responsive to the complainant's allegations as to his own title and possession, and which he has called on defendants to answer, and which they were obliged to answer and have answered. The answer so far as relates to these allegations of the bill is certainly propIt is evidence in complainant's favor so makes an issue of fact to be tried, but the far as it extends, and so far as against him, answer cannot as a whole be ignored and stricken from the files. er. Nor, under the decisions as they stand, could that part of the answer which sets up defendants' title be stricken out on this mo the answer. The motion is made under rule 213, allowing objections to a pleading, or any part of it, to be made on motion, the motion being a waiver of a right to demur to a bill or except to an answer. This rule has stood in its present form since 1886, and the cases have uniformly held that a motion to strike out part of an answer because it set up no equitable defense did not come under the rule. The rule, as the cases hold, was not intended to allow a demurrer to an answer in the form of a motion, but only to allow the motion to strike out to take the place of an exception. EMERY, V. C. At the hearing of the motion to strike out the answer in this case, the objections that the answer was not filed in time and that it was not under the seal of the corporation were abandoned, and the motion, on the ground that no title is shown by tion rested on the other objections. The bill is filed under the act to quiet title, alleging among other things complainant's peaceable possession of the lands in question, defendants' claim of title to some part of it, and that no suit is pending to enforce or test the validity of defendants' title or claim, and the bill calls for answer by the defendants. The two defendants answering jointly admit "that complainants are in possession of part of said premises, but say that these defendants are in possession of such part of said premises as are hereinafter stated." This part of the premises so referred to is a tunnel for a railroad track, under the premises described by the bill, constructed by defendants' predecessor in title previous to complainant's purchase of the lands, and as to the possession of this part of the premises, the answer says the defendants "have been the owners and possessors of said tunnel and its appurtenances as originally existing or projected through the said premises mentioned in said bill, and that they have been in In Doane, etc., Co. v. Essex Building, etc., Co., 59 N. J. Eq. 142, 45 Atl. 537 (Stevens, V. C.), a motion to strike out part of an answer because it did not disclose an equitable defense was denied, and it was said that the proper method of raising this question, if complainant chose to take the risk, was to set the case down for hearing on bill and answer, where all the allegations of the answer are, under the statute, taken as true. Chan |