A borough has no right to impose conditions which do not tend toward the protection of the interest which it has as guardian of the public easement in its highways.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1435; Dec. Dig. § 661.*] 5. MUNICIPAL CORPORATIONS (§ 168*)-MAYOR -SCOPE OF AUTHORITY-POTABLE WATERS.

And it is also pointed out that our statutes | 4. MUNICIPAL CORPORATIONS (8 661*)-PUBLIC EASEMENTS-PROTECTION. concerning reorganizations seem to indicate that this is the public policy of our state. Finally, it is insisted that even if all necessay facts were properly charged, the laches apparent on the part of the complainant would bar him from relief under the doctrine recently enunciated in the case of Dana v. Tobacco Co., 72 N. J. Eq. 44, 65 Atl. 730 (Pitney, V. C., 1907), affirmed 69 Atl. 223 (Ct. of Errors, 1908). It is pointed out that in that case a certain number of weeks was held to be too long for the complainant to have delayed before acting, and in this case at least the same number of weeks must be found to have intervened between the time when the complainant will be charged with knowledge and the time when he actually acted.

This brier reference to the various objections to the Will urged by the demurrant indicates their seriousness and importance. But I do not conceive it proper for me to attempt to formulate the law with respect to these different contentions, because I do not find, as above fully stated, that the facts charged in the bill make a case calling for their consideration.

I will advise a decree in accordance with the above conclusions.

(77 N. J. E. 166)

The duty to safeguard the potable waters of the state, and see that none which originate therein are transported beyond its borders, is not within the scope of the duties of the chief executive officer of a borough.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 376; Dec. Dig. & 168.*]

6. MANDAMUS (8 72*)-EXERCISE OF DISCRE

TION-POWER TO COMPEL.

Mandamus will not lie to compel the exercise of a discretion.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 134; Dec. Dig. § 72.*]

7. INJUNCTION (8_74*)-AUTHORITY-ILLEGAL AND EXCESSIVE USE.

An injunction may always go to restrain an illegal and excessive use of authority.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 142; Dec. Dig. § 74.*]

Suit by the City of Bayonne and another against the Borough of North Arlington. Heard on motion for preliminary injunction. Injunction granted.

Gilbert Collins, for the motion. John M.

CITY OF BAYONNE et al. v. BOROUGH OF Bell and Warren Dixon, opposed.

NORTH ARLINGTON.

(Court of Chancery of New Jersey. Feb. 17, 1910.)

1. MUNICIPAL CORPORATIONS (§ 663*)-STREETS -EXTENT OF EASEMENT-RIGHTS OF ABUTTING OWNERS.

Where a person owns land across which a street has been constructed, he owns the fee simple of the highway, subject only to the public easement, which extends, not only to the use of the surface for purpose of passage, but also to the portion which lies beneath the surface wherever it is needed for water, sewer, or gas pipes, or any other legitimate street use.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1438; Dec. Dig. § 663.*]

HOWELL, V. C. This suit is brought by the city of Bayonne and the New York & New Jersey Water Company to restrain the borough of North Arlington from interfering with the action of the water company in laying a line of water pipe across three streets of the borough. The water company is under contract with the city of Bayonne to furnish it with a supply of potable water, and, in order to do so, it finds it necessary to lay a pipe line from the Passaic river across the borough, and thence to Bayonne. It has acquired title to or a right in a strip of land running across the borough, and by virtue of its ownership of land on both sides of the three streets in question it claims to own the fee of the streets subject only to the public easement therein, or, in other words, it claims the title to and possession of the streets adjacent to its pipe line route in so far as the same does not in any manner affect the public user, and the consequent right to lay its water pipes under the surface thereof. There is an ordinance of the borough passed in 1900, by which it was ordain3. MUNICIPAL CORPORATIONS (§ 121*)-VALID-ed that no person or corporation should dig ITY OF ORDINANCE-COMMON-LAW JURISDICTION.

2. MUNICIPAL CORPORATIONS (§ 668*)-STREETS PRIVILEGES OF ABUTTING OWNERS-RIGHT TO LAY PIPES.

In the absence of an ordinance or statute prohibiting it, an owner of the fee of the bed of a street had the right, without a permit from any one, to lay pipes across and under the street, so long as such pipes did not unduly interfere with public travel or with the subsurface use to which the street as such was subject.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1444: Dec. Dig. 668.*]

A court of equity will not pass upon the validity of an ordinance; that being the peculiar province of the courts of the common law. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 257; Dec. Dig.

121.*]

up, under, over, or through the public places, avenues, streets, or highways of the borough, or open the same at any place at any time for any purpose whatever without a permit so to do first obtained signed by the mayor and attested by the clerk of the borough, and

submit to any reasonable regulation for the doing of the work that this court might prescribe. On the return of the order to show cause why the injunction should not issue, the defendants (the borough and its mayor) appeared and filed an answer, the burden of which is a repetition of the two reasons given by the mayor for declining to permit the water company to lay its pipe line across the three streets in question. On the argument it was likewise objected that, if the complainants had any remedy whatever, it was by way of mandamus and not by injunction.

requiring every person who desires to so dig | and across said highways, and offering to up, over, under, or through said places to apply to the mayor in writing describing the place or street for which the permit is desired, and the object of opening the same, and providing that the mayor should have power to grant a permit for such purpose whenever in his judgment it might seem proper. It further provides for inspection of the work under the supervision of the mayor, and directs that the expense thereof shall be paid by the applicant. On January 4, 1910, the water company made three separate applications to the mayor of the borough for permits to dig up and open the three streets for the purpose of laying its There seems to be little doubt but that a water pipe across and under the same at the person who owns lands across which a highpoints and in the manner shown in a plan way has been constructed owns the fee which accompanied the applications. The simple of the highway, subject only to the applications stated that the pipe would be public easement, and that the public easeof steel 30 inches in interior diameter, and ment extends, not only to the use of the surwould be laid more than 3 feet below the face of the earth for purposes of passage, surface of the avenue and in such manner but also to the portion which lies beneath as not to interfere with the public travel or the surface wherever it is needed for water with any present constructions in or under pipes, sewer pipes, gas pipes, or any other the avenue, which application was accom- legitimate street use. It was so held in the panied with the fee required by the ordi- case of Winter v. Peterson, 24 N. J. Law, nance. On January 14th the mayor of the 524, 61 Am. Dec. 678, a case cited by comborough delivered to the water company a plainants' counsel, and it is so recognized writing, in which he stated that he had come generally by the bar and bench. Borough of to the conclusion that he could not grant the Brigantine v. Holland Trust Co. (N. J. Sup.) permit requested for two reasons: "(1) Be- 37 Atl. 438. If there was no ordinance or cause the resolution of the city of Bayonne other interfering statute, it would seem as under which you claim to be working, which if the water company had a right without a provides that the pipe shall be of an estimat-permit from any one to lay its pipe line ed capacity sufficient for the present needs across the three streets in question so long and for other requirements of the city of as it did not unduly interfere with public Bayonne, as well as for the proposed service travel or with the subsurface use to which to the borough of Richmond (New York), the highway as such is subject. Question is clearly indicates to my mind that the city of made in this case as to the legality of the Bayonne has a sufficient supply of water for ordinance in question. The borough act its present and future needs, and that the which gives authority to boroughs to pass orreal object of the contract entered into with dinances in section 28 provides that the counBayonne for an alleged emergency supply is cil of the borough shall have power "to preto enable you to convey potable waters of scribe the manner in which corporations or this state through the said pipe line across individuals shall exercise any privilege grantthe river road, Kearny avenue, and Schuyler ed to them in the use of any street, road or avenue to the city of Bayonne, and thence highway, or in digging up the same for any to the Kill von Kull, and under the same to purpose whatever." It was argued on behalf the borough of Richmond, in the city of New of the complainants that the ordinance in York, and state of New York, contrary to question was not authorized by that statute, the laws of this state, and it is my duty as inasmuch as the ordinance did not prescribe the mayor of the borough of North Arlington the manner in which corporations or individto see that the laws of the state are faith- uals should dig up the highway for its purfully executed. (2) Because your company poses, but quite on the contrary thereof has entered into a contract to sell water to left it with the mayor of the borough to prethe Roman Catholic diocese of Newark with- scribe the manner in which it should be done, in the borough of North Arlington without committing each individual case to his sole the consent of the corporate authorities of discretion, which might be exercised in one said borough, and without the consent of the way on one street and in another way on the said authorities to the incorporation of your next one. The question of the validity of said company or to the laying of pipes by this ordinance, however, I must decline to it beneath the surface of the public roads pass upon; that being the peculiar province and streets of said borough, contrary to the of the courts of common law. About two laws of this state." The water company months ago the water company filed its bill then filed its bill to restrain the borough against the borough for the same relief which from in any manner interfering with its the complainants now ask in this suit on be work in the laying of its water pipes under | half of the water company. The water com

volved.

pany had then sought permission from the | from the exercise of a judgment that conmayor and council of the borough, and they siders the legal rights of all interests inhad refused their consent, except upon conditions which embraced the two reasons which are given by the mayor for his refusal of a permit in the case in hand, and I held that the conditions which they attempted to impose upon the water company were unreasonable, and that the conditions which might be imposed in granting an application under that ordinance were conditions which were necessary for the proper protection of the borough and its public highways; and I still think, after having heard a second argument on the same point, that the borough has no right to impose conditions which do not tend toward the protection of the interest which the borough has as guardian of the public easement in its highways. This seems reasonably clear from the opinion of the Supreme Court in Cook v. North Bergen, 72 N. J. Law, 119, 59 Atl. 1035, affirmed 73 N. J. Law, 818, 65 Atl. 885.

In my opinion the reasons assigned by the mayor for refusing the permit are not sound in law, nor do I find that they are well founded in fact. Having attempted to give the specified reasons as reasons for his refusal, he thereby excludes from consideration any other reasons which may have influenced him, and he has therefore elected to stand or fall by the reasons which he has presented. There may be other good and sufficient causes which moved him to his determination, but they are not apparent, nor am I able to hazard a guess as to what they might be. He has undertaken on behalf of the borough of which he is mayor to safeguard the potable waters of the state upon the theory that it is his duty as the chief executive officer. of his borough to see to it that no potable waters which originate in New Jersey shall be transported beyond its borders. In the former case I held that such an arrogation of power was not within the scope of the duties of the chief executive officer of a borough; and, in so far as his refusal is based upon this reason, it stands without foundation. His other reason, viz., that the water company intends to supply water to the Catholic cemetery, seems to be quite as devoid of a foundation. If under the law the water company shall eventually find that it has no right to sell water to any one within the limits of the borough, it will not be permitted to do so, but it will be soon enough to make this inquiry when the attempt is made. I therefore am of opinion that the second reason given by the mayor is quite as fallacious as the first, and that his refusal must therefore appear to be without reason, and consequently void as a mere capricious exercise of a discretion which the ordinance clothes him with, and not a discretion which is based upon an examination of pertinent and relevant facts and which flows

I have no doubt of the jurisdiction of this court to act in the premises. The borough claims that, if the water company has any remedy, it is by way of mandamus. This position was well answered by the statement that mandamus will not lie to compel the exercise of a discretion. The reason is quite obvious. The only judgment that could be rendered in an action of mandamus would be that the officer should exercise his discretion. The court would not attempt to do so for him. This he claims he has done. Hence the mandamus could be of no avail. Roberts v. Holsworth, 10 N. J. Law, 57; Benedict v. Howell, 39 N. J. Law, 221.

The case appears to me to be an ordinary one of an attempt to use an authority unreasonably and without a due consideration of the rights of the water company. Its effect is to practically destroy its right in the subsurface of the highway upon avowed grounds that appear to me to be untenable, and hence to cause to the water company an injury which if permitted to continue would An inwork an irreparable, damage to it. junction may always go to restrain an illegal and excessive use of authority. 2 High on Inj. § 1309.

I therefore am of opinion that an injunction should issue in accordance with the prayer of the bill.

(79 N. J. L. 223) BRETTHAUER v. JACOBSON et al. (Supreme Court of New Jersey. March 2, 1910.)

1. APPEAL and Error (§ 78*)-DECISIONS REVIEWABLE-FINALITY-RULINGS ON DEMUR

RER.

Though an order overruling a demurrer to the declaration, which allowed five days in defendant sued out a writ of error, it in effect which to plead. was not a final judgment, where was a refusal to accept the time allowed; and, since a necessary preliminary to the filing of a plea, after the overruling of a demurrer, is the withdrawal of the demurrer, by doing this defendant abandoned any defense he may have had on the merits. Hence the suing out of the writ of error rendered the order a judgment final in effect, though not in form, so that it was reviewable on error.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 465-467; Dec. Dig. § 78.*] 2. DEATH (§ 9*)-ACTION FOR DEATH-RIGHT ΤΟ ΜΑΙΝΤΑΙΝ.

The right of an administrator to sue for the wrongful death of his decedent rests entirely upon statute.

[Ed. Note.-For other cases, see Death, Cent. Dig. § 11; Dec. Dig. § 9.*]

3. LIMITATION OF ACTIONS (§ 4*)-STATUTESCONSTRUCTION.

Until the period fixed by ordinary statutes limitation has arrived, the statute is subject to legislative control.

of

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 11; Dec. Dig. § 4.*]

1 Gen. St. 1895, p. 1188, § 11, as amended by P. L 1907, p. 386, giving a right of action for damages for wrongful death if brought within a certain time, is not an ordinary statute of limitations, since it operates not only as a limitation of the remedy given the plaintiffs, but also as a limitation or the liability which it creates against defendants.

[Ed. Note.-For other cases, see Death, Dec. Dig. § 38.*]

5. DEATH (§ 38*)-RIGHT OF ACTION-LIMITATIONS REPEAL OF STATUTE-EFFECT.

4. DEATH ($38*)-ACTION FOR DEATH-LIMI- | which it is passed, is not, in itself, a final TATIONS-REMEDY-LIABILITY. judgment, dispositive of the matters in litigation between the parties to the suit. It is, rather, a judgment nisi, permitting the plaintiff to enter judgment final at the expiration of the five days limited therein, unless in the meantime the defendant shall plead to the action. But the act of the defendant in suing out his writ of error was, in its legal effect, a refusal to accept the privilege extended to him by the court; for a necessary preliminary to the filing of a plea, after the overruling of a demurrer, is the withdrawal of the demurrer. By adopting this course of procedure he has abandoned any defense which he may have to the action upon the merits; and, unless he can succeed in reversing the order entered against him, there remains to be done nothing except to assess the plaintiff's damages and tax his costs. This being so, the suing out of the writ of error rendered the order a judgment final in effect, though not in form, and it is consequently reviewable on error. Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 Atl. 314, 19 L. R. A. (N. S.) 923.

1 Gen. St. 1895, p. 1188, § 11, gives a right of action for wrongful death if brought within 12 calendar months after the death had occurred. P. L. 1907, p. 386, extended the limitation to 24 calendar months. 3 Gen. St. 1895, p. 3194, § 27, provides that the repeal of any statutory provision by an act of the Legislature shall not affect or impair any act done, or right vested or accrued, before such repeal shall take effect, etc. Plaintiff's decedent was killed 53 days before the amendment of 1907 took place. Held, that the amendment repealed the 12-month limitation, and substituted a longer period and by the express provisions of 3 Gen. St. 1895, p. 3194, § 27, such repeal did not af fect any right vested before the repeal took effect, and left the relative rights of the parties where it found them; hence where plaintiff's action was not brought within 12 months, his declaration was demurrable.

[Ed. Note.-For other cases, see Death, Dec. Dig. § 38.*]

Turning to the merits, the following situation is disclosed: Charles Bretthauer, the plaintiff's intestate, was a resident of the city of Elizabeth, and came to his death in that city on the 16th day of March, 1907, by of horses belonging to the defendants, and being run over by a wagon drawn by a pair

Error to Circuit Court, Union County. Action by Carl Bretthauer as administrator of the estate of Charles Bretthauer, deceased, against Barnett Jacobson and oth-carelessly driven by one of their employés. ers. From an order overruling a demurrer to the declaration, defendants bring error.

Reversed.

Argued November term, 1909, before GUMMERE, C. J., and GARRISON and VOORHEES, JJ.

John J. Stamler, for plaintiffs in error. Alfred A. Stein, for defendant in error.

The present action was begun on the 17th day of February, 1909, and by it the plain

tiff seeks to recover from the defendants the

pecuniary loss sustained by the decedent's next of kin by reason of his death. The right of an administrator to maintain an action in this state for the wrongful death of his decedent rests entirely upon statutory law. Our act of March 3, 1848 (1 Gen. St. 1895, p. 1188, § 11), which confers such right, required, in its original form, that such action should be instituted within 12 calendar months after the death had occurred. This limitation was extended by an amendment to the act, passed May 8, 1907 (P. L. 386), to 24 calendar months after such death. The amendment referred to took place 53 days subsequent to the death of Mr. Bretthauer, and the question presented by the demurrer was whether the defendant's liability to answer for that death ceased at the end of 12 months after its occurrence, or was extended to 24 months thereafter by force of the amendment of 1907. The court below concluded that by the amendment the defendant's liability was extended to the 16th day of March, 1909, and, as the present suit was begun a month before that date, held that it was within the period fixed by the statute.

GUMMERE, C. J. The record returned with the writ in this case comprises a declaration, a demurrer thereto, and the following order, viz.: "The argument of the demurrer to the plaintiff's declaration coming on to be heard in the presence of the counsel of the respective parties, and the court having heard and considered the same, it is on this 4th day of May, 1909, on motion of Alfred A. Stein, attorney for the plaintiff, ordered that the demurrer be overruled with costs, and that the defendants plead to the plaintiff's declaration within five days from the date hereof." The writ of error is tested on the 7th day of May, 1909, two days before the expiration of the time within which, by the terms of the above-recited order, the defendants were entitled to plead. The case, therefore, involves the preliminary question whether the order returned with the writ is reviewable on error; in oth- If the provision in the death act fixing er words, whether it is a final judgment. It the time within which suits instituted thereis apparent that this order, in the form in under should be brought was an ordinary For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

75 A.-36

in force. The amendment of 1907 to the death act repealed the 12-month limitation her down to October, 1902. At that time the contained in the original act, and substitut-parties agreed to separate, and have since lived apart.