N. Y., S. & W. R. R. Co. v. Paterson.

81 N. J. L.

the railroad company would present a prima facie right to

recover.

The defendants, however, insist that there was no action taken by that branch of the city government which has exclusive control of the contracts for sewers, to support the act of the mayor in signing and affixing the city seal to the contracts. The insistence is that this sole and exclusive power resides in the board of aldermen of the city of Paterson, and it appears from the records of that board that no action by it was taken in respect to the contracts in question.

If it be true that the sole power in this respect is vested in the board of aldermen, the defendant presents a prima facie case of want of authority in the mayor to execute the contracts.

By the old charter of the city of Paterson there was created a department of streets and sewers (Pamph. L. 1871, p. 816), which was invested with certain powers concerning sewers, and it is insisted that under this power these contracts could have been authorized, and it is insisted that there is no evidence to show that this department did not authorize the execution of these contracts.

The counsel for the defendant insists, however, that this department was stripped of all authority over sewers by force of the act of 1882 (Pamph. L., p. 60), entitled "An act to authorize cities to construct sewers and drains, and to provide for the payment of the cost thereof."

This act has been held a general act, and so repeals all inconsistent clauses contained in previous charters. It confers power on the board of aldermen to order sewers to be built in cities, and provides for a petition to the said board for the construction of sewers, and provides for the appointments of commissioners to estimate benefits, and provides for the payment of expenses of the improvement by the issue of certificates. That is the scope of the act: to provide for the construction, for the assessing of benefits, and for the payment of the expenses for the sewers.

Now, the city charter of 1871, in existence at the time these contracts were executed, as already remarked, provided for a

52 Froom.

Paterson, &c., R. R. Co. v. Paterson.

department of streets and sewers charged with the execution. of powers given to the board of aldermen, among others, to construct in said cities such sewers and drains as may be necessary in any streets, houses, yards and places requiring drainage, and empowering the department to employ and provide compensation for all agents necessary for the efficient construction of such works.

The power existing under the charter so far as concerned the execution of the work and the employment of agents, does not seem to be in conflict with the powers conferred by the act of 1882. So, we think, that these contracts might have been authorized by this department of streets and sewers, and there being no testimony to show they were not so authorized, the prima facie presumption of regularity contained in the executed contracts conferred a right upon the plaintiff to

recover.

It may be remarked that the limitation upon the power conferred upon the department of streets and sewers to enter into contracts, namely, to enter into contracts not in excess of five hundred dollars ($500)—see section 93 of the act of 1871-would not affect these contracts, as they do not appear to have been in excess of the limitation.

We think the judgment should be reversed.

PATERSON AND RAMAPO RAILROAD COMPANY AND ERIE RAILROAD COMPANY, PROSECUTORS, v. THE MAYOR AND ALDERMEN OF THE CITY OF PATERSON.

Argued November 9, 1908 Decided June 15, 1911.

The city of Paterson has power to lay out and condemn land for streets. Under this power it may open a street across railroad tracks at a point where there are two sidings used by the railroad companies to store empty cars, where it appears that the street will not deprive the railroad companies of the beneficial use of the said sidings.

The opinion of the court was delivered by

REED, J. This writ brings up an ordinance of the mayor and board of public works of the city of Paterson entitled "An ordinance to lay out and open Sixth avenue across the right of way and the lines of the Erie Railroad Company and the Paterson and Ramapo Railroad Company," approved May 20th, 1908.

The main reason for asserting the invalidity of this ordinance is that the place where the new street is to be opened is a freight yard of the contending railroad companies, and that the use of the ground taken by the force of the proposed ordinance will substantially impair the beneficial use of the prosecutor's property for the purpose for which it is now used.

There is no express grant of power to condemn the land of the railroad companies contained in the charter of the city of Paterson, and while the implied power resulting from the special authority to take lands necessary to lay out streets is sufficient to support a crossing of a railroad where the use of the property by a railroad company will not interfere, it will not authorize the taking where the use to which the railroad company's property is put by the company will be materially impaired by the opening up and the use of the same land as a highway or street. New Jersey and Southern Railroad Co. v. Long Branch Commissioners, 10 room 28; New York, Susquehanna and Western Railroad Co. v. Paterson, 32 Id. 408.

The railroad companies' line at the point of the proposed crossing is one hundred and six feet in width. Upon this strip of land is laid two main tracks running in a northerly

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Paterson, &c., R. R. Co. v. Paterson.

and southerly direction. The condemnation of a crossing of these tracks for the purpose of a street at the grade-as it is admitted this crossing is to be-is supportable under the general power to condemn; but the railroad property is used for tracks other than the two main lines.

To the west of the northerly main line is a long switch, beginning at Fifth avenue about seven hundred feet north of Sixth avenue and running south across Sixth avenue about three thousand feet to a point near River street. From the long switch run off several shorter sidings. One of these sidings leaves the long switch at a point near the south side of Sixth avenue, and extends and curves westerly into the private property of a chemical company. Another siding leaves the long switch about two hundred feet north of Sixth avenue and curves southerly, but does not cross Sixth avenue. Another siding starts two hundred and fifty feet north of Sixth avenue and runs into a silk mill property, but does not cross Sixth avenue.

To the south of Sixth avenue several other switches lead off from the long switch into the works of private shippers, but none of these switches cross Sixth avenue.

To the east of the two main line tracks are, first, a siding beginning eight hundred feet north of Sixth avenue and running south across Sixth avenue parallel with the main tracks a distance of one thousand five hundred feet; secondly, a siding leaving the preceding siding at a point six hundred feet north of Sixth avenue, running south one thousand three hundred. feet next, a siding running off from the second preceding siding at a point one hundred feet south of Sixth avenue, and running north across Sixth avenue into the property of a file works; next, a siding running off from the second preceding siding from a point one hundred and fifty feet north of Sixth avenue into the file works; next, another siding running off from the same switch from a point three hundred feet north of Sixth avenue, and still another starting five hundred feet from the southerly line of Sixth avenue north, but not crossing Sixth avenue.

The switches running across Sixth avenue are the long

Paterson, &c., R. R. Co. v. Paterson.

81 N. J. L.

switch on the west of the two main lines, and the switches one and two.

The presence of these switches would not create a situation which would prevent the opening of a street across the railroad tracks, for it would amount to no more than increasing the number of tracks to be crossed, and the presence of the tracks afford no obstacle to the joint use of the place in question by the railroad companies and by the city of Paterson; but it is claimed that the sidings are used not merely for the passage of cars over these tracks, but some are used for the purpose of storing cars, which cars are to be used in connection with the general traffic of the railroads.

The two sidings on the westerly side of the main tracks are used for assembling empty westbound cars, ready for movement, so that they can be picked up by westbound trains without additional switching. The openings for the street would require a space of two to four cars, and assuming that the present space is required at times for the storage of cars, it would only require the grading down of an embankment to extend the siding, or would require the movement of some of the cars a distance of about one thousand two hundred feet.

This point of crossing cannot be said to be a freight yard as distinct from the remainder of the tracks in the city. The condition at the point of crossing is generally similar to the condition of the tracks for two and a half to three miles through the city. The entire distance is used for sidings on which cars are temporarily stored and shifted.

The situation is unlike that in the case of New York, Susquehanna and Western Railroad Co. v. Paterson, 32 Vroom 408. In that case there was upon the strip of ground sought to be taken a freight house. The incoming freight was put upon the sidings upon the ground for consignees to come in with their teams and remove it. The company had no other yard facilities in the city of Paterson to be used in place of those at the point of crossing.

In the present case, we think that the opening would not deprive the railroads of the beneficial use of a freight yard. The ordinance brought up should be affirmed.