State ex rel. Mount Pleasant Cemetery Co. v. Paterson, Newark & New York Railroad

The opinion of the court was delivered by Depue, J.

The relator is the owner of a plot of ground used for cemetery purposes, lying upon the banks of and adjacent to the Passaic river, a tidal stream.

The Paterson and Newark Railroad Company was incorporated by a special act of incorporation, passed February 22d, 1866. Pamph. L.,p. 86. The company was authorized to construct its railroad along the Passaic river, from Belleville to Newark, and to acquire the rights of the shore-owners by purchase or condemnation. In constructing its railroad between Belleville and Newark, the track was laid in front of *509 the cemetery grounds below high-water mark. The legal effect of this part of the company’s charter was adjudged by the Court of Errors in Stevens v. Paterson and Newark R. R. Co., 5 Vroom 532 .

The road was built in 1866 and 1867. Financial embarrassments and insolvency having intervened in 1870, the property and franchises of the company, on the 2d of November, 1871, were sold to purchasers who effected a re-organization of the company under the name of The Paterson, Newark and New York Railroad Company, pursuant to the act of March 17th, 1870. Pamph. L.,p. 55.

On the 8th of September, 1868, and before the sale under the insolvent proceedings, the railroad and franchises of the company were leased and demised to the Erie Railroad Company. The sale in 1871 was made subject to this lease.

In 1875, the Erie Railroad Company in turn, became insolvent, and its property and franchises were sold to purchasers, who re-organized under the name of The New York, Lake Erie and Western Railroad Company.

The charter of the Paterson and Newark Railroad Company, in the section granting the powers above mentioned, contained this proviso:

“ Provided, that, in passing by the lands of the Mount Pleasant Cemetery, the said railroad shall not encroach upon the lands thereof which are used for burial purposes in said cemetery; but the said railroad shall be constructed entirely outside, and to the east, of the present stone wall embankment of the cemetery grounds, and near the line of high water in said Passaic river; and before entering upon the said lands, the said railroad company shall enter into an agreement with the Mount Pleasant Cemetery Company to construct a suitable stone wall, not less than six feet high, on the line between said raili’oad and the cemetery grounds.”

The relator applies for a writ of mandamus, to be directed to the Paterson, Newark and New York Railroad Company— the successor of the Paterson and Newark Railroad Company— and to the New York, Lake Erie and Western Railroad Com *510 pany—the successor of the Erie Railroad Company—commanding them or one of them to build or construct a suitable stone wall, not less than six feet high, on the line between the railroad and the cemetery grounds of the relator.

A writ of mandamus will lie at the instance of a private individual against a corporation, to compel performance of a duty enjoined by its charter to be executed for the benefit of the relator or the class of individuals to whom he belongs. The allowance of this writ to compel a company to treat for the purchase of lands—to issue a warrant for a jury to assess damages—to build bridges, to provide water-ways and the like—are instances of such a use of the writ. Reock v. Mayor, &c., of Newark, 4 Vroom 129 ; Rex v. Prop. of Nottingham Water Works, 6 A. & E. 355 ; Reg. v. Birmingham C. Co., 4 Jur. 173; Reg. v. E. C. R. R. Co., 5 Id. 365; Reg. v. N. M. R. R. Co., 2 Railw. Cas. 1; Reg. v. N. & B. R. R. Co., 4 Railw. Cas. 112; Reg. v. Y. & N. M. R. R. Co., 3 Id. 764; Reg. v. M. & L. R. R. Co., 1 Id. 523. But the allowance of the writ in such cases must be controlled by the fundamental principle that it is the absence of an adequate legal remedy that gives the court jurisdiction to proceed by mandamus. Two things must concur to authorize the issuing of a mandamus—a specific legal right, and the absence of an effectual legal remedy. 2 Dill. on Mun. Corp., §§ 665, 686; State v. Holliday, 3 Halst. 205; State, ex rel. Nicholson Pav’t Co., v. Newark, 6 Vroom 396 ; State, ex rel. Little, v. Township of Union, 8 Id. 84; Queen v. Hull and Selby R. R. Co., 6 Q. B. 70; Moses on Mandamus 176, 178; 2 Redf. on Railways 279, 286.

The specific legal duty enjoined upon the Paterson and Newark Railroad Company by its charter, with respect to the relator’s lands, was that it should construct its railroad entirely outside and to the east of an existing stone wall embankment, and near the line of high-water mark in the river, and that, before entering upon the said lands, the railroad company should enter into an agreement with the cemetery company to construct a suitable stone wall, not less than *511 six feet high, on the line between the railroad and the cemetery grounds.

The railroad company located its road outside of the line indicated, and, before it commenced the construction thereof, entered into a bond to the relator, bearing date on the 17th •of August, 1866, in the penal sum of $30,000, in which, after reciting the above provisions of its charter, the railroad company did agree to construct, within three years, a suitable stone wall, not less than six feet high, on the line between its railroad and the cemetery grounds, with condition, that if the said company should well and truly construct, within three years from the date of said bond, a suitable stone wall, not less than six feet high above the surface of the ground, with a proper foundation laid in cement to the water line, and that part above said line to be laid in good lime and sand mortar, the line of said wall to be designated by said cemetery company, then the said obligation was to be void, else to remain in full force. It is to be inferred from the state of the case and the briefs of counsel that this bond was delivered to the relator, and that the specifications of the work were mutually agreed on. At least, no point is made that the company neglected or refused to execute and deliver to the relator an agreement in compliance with the charter.

In the act incorporating the railroad company, it was the legislative purpose to secure to the relator a satisfactory location of the railroad, and an agreement for the erection of a wall, to be enforced in the usual method by which contracts can be enforced—>by action at law or by bill for specific performance. The specific duty imposed on the company by its charter, in this respect, has been fully performed.

The bond which was executed and delivered complied with ■the terms of the charter. On it the relator had an adequate remedy, according to the nature of the case, either by action or proceedings for specific performance. The agreement was executed in August, 1866. The road was constructed in 1866 and 1867. The eotnpany did not become insolvent until 1870, and its corporate existence was not extinguished until the sale of *512 its property and franchises in 1871. The relator had adequate legal remedy on its contract. If that remedy has since become inefficacious by reason of delay, the relator cannot have relief by mandamus. Duties imposed on a corporation, not by virtue of express law, or by the conditions of its charter, but arising out of contract relations, will not be enforced by mandamus. High on Ex. Rem., § 321.

The writ should be refused, and the rule to show cause be discharged.