New-Jersey Rail Road and Tr. Co. v. Suydam.

Where it is intended that the merits of an assessment, shall be looked into by this Court, the power is expressly given; as in the charter of the Camden and Amboy Rail Road and Transportation Company, sec. 14, Har. Comp. 289. There, this Court was authorized to set aside the assessment, upon motion, "for good cause shewn," and send the matter to a jury. The power was exercised by them in two cases. Bennet v. Railroad, 2 Green, 145; Van Wickle v. Railroad, 2 Green, 162.

In those cases, writs of Certiorari might have been brought to remove the proceedings, on proper grounds. But if brought, would the Court have set aside those assessments, for the same reasons that they did on the motion? Surely not. And yet that statutory remedy did not abridge the office and power of the writ of Certiorari. The remedy was cumulative. And without it the Court would have had no power to look into the merits of the assessment.

By the statute under which the present proceedings have been had, there is no such power given. The plaintiff has come to this Court with a common law writ. He can have no other than the appropriate remedy, and that by the appropriate means. There is a wide difference between the two charters, and the meaning of both is too plain to be mistaken. When the Legislature intend to give an appeal on the merits, it is given in express terms. When it is not given, the writ of Certiorari cannot supply the omission, and thus vary the provisions of the charter, and the rights of parties.

III. But another exception is taken to this award. It is said that the Commissioners acted on "erroneous principles." The specification under this vague charge is, that they allowed more than the present value of the land, and therefore must have made their estimate on some supposed or fanciful, or prospective, or speculative value.

This exception must overcome many difficulties, before it can prevail.

I. This Court cannot know, nor can they ascertain what principle of calculation the Commissioners assumed in making their assessment. The Commissioners are not before the Court. They have not been examined. There was no evidence or testimony adduced before them, on which they were to found their opinion,

New-Jersey Rail Road and Tr. Co. v. Suydam.

and which can be brought here, that the Court may ascertain. from it, the correctness of their judgment. They acted on view alone. How then can the Court be informed of the principles on which they made their estimate!

2. If the Court resorts to evidence to show the actual value of the property taken, and damages sustained, it must depend on the opinions of witnesses, and perhaps not the most competent and disinterested. Then it will have the opinions of those witnesses, with which to compare the judgment of the commissioners; and if they are discrepant, which is to prevail? The law says, the commissioners shall estimate the compensation. This Court cannot say that their judgment shall be controlled and overcome by the judgment of witnesses. That were to change the tribunal provided by law.

The Court can

3. But a more serious difficulty remains. get at the "erroneous principle" of compensation complained of, only by instituting an inquiry into the amount that ought to have been assessed, and comparing it with the assessment actually made. There is nothing on the face of the award, that throws any light on the subject. Every thing must depend on evidence. And what is this, but an investigation of the merits of the award? The very first step to ascertain this pretended "erroneous principle," is to go into an estimate of value and damages. Now this is just what the Court has no authority to do.

The cases cited on the other side, from Wendell, do not support the ground contended for, by the Counsel of the Company. There, the commissioners erred in point of law; and the cases, prove the position, which is not disputed, that when inferior tribunals act on erroneous principles of law, their proceedings will be set aside. In the one case, the commissioners, in direct contravention of the law under which they acted, neglected to assess the damages, on all the property that should have borne the burden. In the other, the damages were given as for an estate in fee, when the party injured had but a limited interest. These authorities are entirely consistent with an argument, that only legal errors can be corrected by Certiorari. In one of the cases, the Court expressly adopted the principle, that when the assessment was made on the right persons, and property, and estate, the Court had no authority to look into the amount. This rule

New-Jersey Rail Road and Tr. Co. v. Suydam.

is universal. There is not a contrary case to be found. In Starr v. Rochester, before cited, C. J. Savage says, that "the Common law powers of the Court, are confined to the examination. of the jurisdiction of such inferior tribunals, and to questions of law arising out of their proceedings, not to an examination of their decisions on questions of fact. Upon such questions, their decision must be final, unless the statute has provided a mode of review."

The argument then, that this Court can examine this award, because the commissioners have acted on "erroneous principles," in the mere mode of calculating damages, is a fallacy. The only erroneous principles that can successfully invoke the corrective power of the Court, sitting simply as a Common law tribunal, are erroneous legal principles. In this case, the right person has been awarded compensation for the right property, and the right estate. There is no principle of law involved in the question. The only complaint is that the assessment is too high. If then this assessment can be dealt with by the Court, any other one can be in like manner, when it is too high or too low. And if a difference of opinion between witnesses and commissioners, is to be taken as proof that the latter have proceeded on erroneous principles, then the simple question of damage, is open to the Court, in every case of assessment.

What greater power could the Court exercise, if the right of review by appeal, was given them directly by statute?

4. If the Court should feel bound to look into the question of damages, the evidence will be found fully to sustain the award.

Ten respectable witnesses from the neighborhood, the most of them long resident in and near the city of New-Brunswick, and well acquainted with this property, have certified as to its value, and as to the damage, the landholder has sustained; and they have given reasons for their estimate. They say, that this property was more eligibly situated for improvement, than any other adjoining the city. It was directly on the main entrance into the business part of the town. The improvements in the street, on which great part of it was located, were rapidly extending into the heart of the property, rendering it highly valuable. The property is cut diagonally by the Rail road, the base of which was in places, from four to eight feet below the surface

New-Jersey Rail Road and Tr. Co. v. Suydam.

of the ground. Much of it will have to be cut down and levelled, at a great expense, before it can be used. They say also, that twenty-one building lots are actually cut through by the Rail-road, and ten others diminished in value, one half. In making their estimates, they judge from the location of the property, from recent sales and present prices; and from these data, they come to the following results:

at

1. James C. Van Dike, estimates the value and damages six thousand five hundred dollars. 2. Staats Van Deursen, at five thousand eight hundred, do. 3. James H. Newell, five thousand five hundred & ten, do. 4. A. Schuyler Neilson, five thousand, do.

5. Matthew Brown,

five thousand,

do.

6. John V. Crawford, (without fencing) five thousand, do. 7. Henry Solomon, six thousand six hundred & ten, do.

9. James C. Zabriskie, five thousand nine hundred & fifty, do. 10. Peter R Stelle, six thousand, do.

The average estimate of these witnesses, is five thousand six hundred and eighty-seven dollars. The award, including compensation for fencing, is five thousand eight hundred dollars. Making a difference of only one hundred and thirteen dollars. This does not savor much of excessive damages.

It is true, a number of witnesses examined on the part of the Company, estimate the property taken, and the landholder's damage, at a much smaller sum. But they insist on valuing the land by the acre, as though it were plough-land, hence the difference in their conclusion. If this difference involves any principle of law on which the Court can rest, I am unable to perceive it.

The commissioners arrived at the same result as the ten witnesses did, who subsequently testified on the part of the landholder. What mode of computation they adopted we do not, and cannot know, but as it coincides with the honest judgment of ten respectable citizens, it cannot be far out of the way.

If any thing can make manifest the impropriety of entertaining this Certiorari, it is the aspect of the case, as now presented. Upwards of twenty witnesses have been sworn, and volumes of testimony taken in regard to the value of this property, and the

Case, Appellant v. Rowland, Appellee.

damages sustained. And for what object? merely to ascertain whether the assessment is or is not right, in point of amount, and how the commissioners made their calculation. What is this but an enquiry into the merits?

There is nothing to sustain the suit, and it should be dismissed.

CITED in Smith v. Abbott, 2 Harr. 368; Coster v. N. J. R. R. & Tr. Co., 3 Zab. 234; Race & Bird v. Dehart, 4 Zab. 42; Inhab. of Readington v. Dilley, 4 Zab. 215; State v. Cake, 4 Zab. 517; State v. Williamstown & Good Intent Turnpike Co., 4 Zab. 548; Township of Morris v. Carey, 3 Dutch. 404; Van Wagenen v. Hopper, 4 Hal. Ch. 708.

CASE, APPELLANT v. ROWLAND, APPELLEE.

On motion for Mandamus.

Mr. Wurts moved for a mandamus to the Hunterdon Common Pleas, to restore an appeal.

It appears by the state of the case, that the Court of Common Pleas dismissed the appeal in the above case, because the transcript of the proceedings before the Justice of the Peace, does not state that the cause was tried in Hunterdon county, nor that the Justice before whom it was tried, was a magistrate of that county; although all the other papers sent up with the transscript, show both facts.

Mr. Wurts contended that the filing of the appeal bond, gives jurisdiction to the Court of Common Pleas, and supersedes the judgment, without reference to any transcript. Harr. Comp. 6, sec. 6; Elmer's Dig. 291; 5 Halst. 286; Vandoren v. Vandoren.

H. W. Green, contra. This transcript is not a record. It contains no certificate of being a copy from any docket, nor from what state, county, or Court of small causes it came. At common law, it is neither a record nor exemplification of one. The statute, Rev. L. 641, sec. 41, requires a book or docket to be kept, copies of which are to be certified. The paper sent up