
    JOHN SEAMAN, PROSECUTOR, v. THE CITY OF PERTH AMBOY, RESPONDENT.
    Argued January 7, 1922
    Decided January 31, 1922.
    1. Where the charter of a railroad company gives it the1 right to build a branch line to a mill or factory, but not in a city without municipal consent, the consent of the city is not ultra vires. because the proposed structure so authorized will not be a public nuisance, and a private landowner suffering special damage will be entitled to a writ of certiorari to review thél municipal consent, because the proposed structure, if placed in the street, will not, being authorized by statute, be a nuisance subject to indictment. or a civil suit for damages, and without the writ the prosecutor would have no remedy.
    2. The prosecutor owned real property on the corner of two streets; a railroad company having a line of railroad tracks on which it ran cars for the convenience of adjoining landowners on the sidewalk to within a few feet of prosecutor's property, now ’propose to build a similar line for the same purposes on the sidewalk on the other side of the street, thus completely obstructing the approach to prosecutor's property along the sidewalks on both sides of the street except over or along the tracks of the railroad company. Held, that the landowner suffered a special injury, and that if he had no other remedy he was entitled to- a writ of certiorari for his protection.
    3. An ordinance which gives the consent of the municipality to a railroad company to run a branch line along the sidewalks of the city, for the benefit of a private business, so that the use of the sidewalk to approach the house of a landowner on the street is subject to use for railroad purposes, is an unreasonable exercise of municipal power.
    On certiorari.
    
    Before a single justice, by consent.
    For tire prosecutor,. Joseph E. Stricter.
    
    For the respondent, Thomas Brown and Leo Goldberger.
    
   The opinion of the court was delivered by

Bergen, J.

The prosecutor owns a building on the coiner 'of High and Washington streets, in the city of Perth Amboy, and the Standard Underground Cable Company owns the property on the opposite side of the street for at least a distance of five hundred feet northerly from Washington street, as well as that on the same side with prosecutor’s property adjoining it on the north, and on both sides of the street maintains large buildings used for factory purposes. The Lehigh Valley Railroad Company now proposes to build a branch line along the sidewalk on the opposite side of the street from prosecutors property to he used, for- the convenience of the Standard company, to run cars along side of its factory. The railroad company has a right to build the siding or branch in the street under its charter, provided the municipality consents, which it has done by the ordinance the prosecutor has brought to this court to be reviewed by a writ of certiorari. The defendant moved to dismiss this writ on the ground that prosecutor will suffer no special injury, and on this application an order was made allowing the taking of depositions on that question, which, when taken, were so extended a? to embrace the merit of the controversy, and when laid before the court counsel for each side entered into a stipulation that the matter he considered and determined a? on final hearing and was fully argued with that object in view. The record show? that there is, and has been for a number of years, a railroad track for private convenience on the sidewalk approaching prosecutor’s property on Ihe same side of the street running within a few feet of his property, and if the proposed railroad he built on the other slue of the street there will be no approach to his property along either side of High street north of Washington street other than walking along a street occupied by a railroad track. There are no railroad tracks on High street south of Washington street, and no other buildings used for residential purposes, in whole or in part, except that of ‘the prosecutor, on the part of the street along the sidewalk of which the new construction is proposed. Under these circumstances I do not see how it can properly he said that the property of the prosecutor is not specially injured in a manner different from tlie general public or the owners of similar property in the neighborhood.

In Jersey City v. Traphagen the ordinance assailed was one continuing a structure in the nature of an awning on the opposite side of the street from prosecutor’s property, and it was there held that as the structure was in existence it could not be abated by a judgment in certiorari proceedings, and that to accomplish that the prosecutor had a remedy by indictment, the structure being a nuisance, and that the prosecutor bad not suffered special injury. The situation was very different from that in this case where it is proposed to require persons wishing to go to prosecutor’s dwelling to walk along sidewalks over which railroad tracks are to be laid and run trams thereon. In Dufford v. Staats, 54 N. J. L. 286, Mr Justice Dixon, referring to the Traphagen case, supra, said that the opinion in that case cited certain cases, with apparent approval, “but that they should not be deemed so broad as to defeat our jurisdiction under present conditions.”

The Lehigh Valley Bailroad Company proposes to build the proposed road in the street under section 9 of “An act concerning railroads” (Comp. Stat., p. 4223), which authorizes any such company to construct and operate a branch line extending from the main line to “any mill, factor}', mine, clay bed or warehouse,” but shall not construct’ such a branch in'- city or town until it obtains the consent of the municipal authorities. Therefore, the consent in tire present case is not ultra vires, as it would furnish a justification for the proposed act of the railroad company. The rule adopted, by the Supreme Court in Oliver v. Jersey City, 63 N. J. L. 96, which was approved by the Court of Errors and Appeals (Id. 634), although the judgment was reversed for other reasons, is, that the applicant for a. writ of certiorari must show that he will suffer a special injury, subject to the qualification that where the ordinance is ultra, vires, and will furnish no justification for the act authorized, so that if executed it will be a public nuisance, the writ will be denied, not because the prosecutor has no interest, but for the reason that there is another remedy by indictment or civil action. So, if this writ he denied prosecutor has no remedy either by indictment for abatement of the nuisance, or civil action for damages resulting therefrom, because the source of the injury exists by statutory authority. I am satisfied that prosecutor is entitled to his writ, and the motion to dismiss it is denied. The ease of Seaman v. Perth Amboy, recently decided, to which defendant refers, is not applicable here, for in that case the consent was ultra vires, because it authorized the building of a railroad by a party not endowed with power and fell within the exception stated in Oliver v. Jersey City, supra.

Turning to the merits as shown by the testimony, I find as a fact that the proposed occupation of the sidewalk of the street opposite to prosecutor’s property for railroad purposes will be a substantial injury to it. The amount is not material unless it be nominal, for if a substantial right is to be invaded the owner is entitled to protection against it. The testimony taken hv the defendant is directed to establishing the fact that in the opinion of the experts prosecutor will not be injured if, as they say ii will, the business of the factory improves because of the increased convenience to the owners of it, hut this is speculative and does not overcome the inference of special injury to be drawn from the proposed obstruction of the sidewalk on the opposite side of the street north of prosecutor’s property and the running of railroad trains along them when there is a similar obstruction of the sidewalk on the other side of the street.

T’nder the circumstances shown in this case the ordinance consenting to the use of the sidewalks of the city for railroad purposes, for the expressed reason of affording the Standard Underground Cable Company a cheaper and more convenient method of transporting its material to and from its factory, is an unreasonable exercise of municipal power and should he set aside.

The ordinance is. set aside, with costs.  