as was inside the rails of its tracks, and for two feet outside of its outer rails. The declaration then alleges that the defendant company, although duly requested to do so, did not repave these portions of the street, but neglected and refused so to do. Then follows the ad damnum clause. To this count the defendant demurs, and assigns, among others, the following grounds: (1) That the municipal authorities had no power to impose upon the Trenton Passenger Railway Company, Consolidated, and its successors, the burden of repaving any portion of its streets, or to exact a contract from the former company requiring it and its successors to assume that burden; (2) that the contract entered into between the Trenton Passenger Railway Company, Consolidated, and the city, set out in the declaration, is ultra vires and without legal force; and (3) that by the effect and operation of an act of the Legislature passed March 23, 1900 (P. L. 1900, p. 502), entitled "An act for the taxation of all the property and franchises of persons, copartnerships, associations or corporations, using or occupying public streets, highways, roads or other public places," etc., the defendant was relieved and exonerated from the burden or expense of repaving, imposed by the ordinances referred to in the declaration.

The first ground of demurrer specified by the defendant does not require consideration. Conceding that the municipality had no power to compel the street railway company to repave those portions of the public highways which lie between its tracks and for two feet outside thereof, the declaration discloses no attempt made by it to do so. The allegation is that the company, being desirous of substituting electricity as the motive power of its cars, applied to the municipal authorities for permission to do so, and for authority to erect poles in the public streets, and string wires thereon for the purpose of supplying that power to the motors to be installed upon its cars that the municipality, in response to that application, in effect said to the company, "We will grant you permission to do what you ask, if you will agree on your part to repave so much of our streets, through which your road runs, as lie between the rails of your tracks, and two feet outside of them, we request you to do so," to which the company replied, "We accept your proposition, and agree to do the repaving, in consideration of your granting us the permission to make the change in our motive power which we have applied for." The obligation which this suit seeks to enforce, therefore, rests (if it exists at all) upon the agreement of the parties, and not upon any power inherent in the municipality to compel the defendant, or its predecessor in ownership, to repave any portion of the public streets against its will and without its consent. For the same reason the contention that the Trenton Passenger Railway Company, Consolidated, and its successors, the defendant, are

under no obligation to repave any part of the public streets of the municipality, because the municipal authorities had no power to exact a contract from the former company, requiring it and its successors to assume the burden imposed upon it by the ordinance, is without substance. No compulsion was exercised by the board of works upon the corporation for the purpose of causing it to enter into the contract. On the contrary, the company was entirely free to either accept or reject the proposition submitted to it by the board. It accepted it, presumably because it considered that the advantages to come to it therefrom more than counterbalanced the burdens to which it would be subjected thereby.

The question presented by the second specification of causes of demurrer, that a contract such as is set out in the declaration is ultra vires the municipality, has already received consideration from this court in the case of Jersey City v. Jersey City & Bergen Railway Co., 70 N. J. Law, 360, 57 Atl. 445. In that case the railway company, by its charter, was authorized to construct and operate a railroad through certain streets of Jersey City, provided the consent of the common council should be first obtained. Application having been made by the company to the council for such consent, that body passed an ordinance granting its consent, upon condition that the company should pay to the city an annual license fee for each car run upon its railroad. The ordinance was accepted by the company. In a suit brought by the city to collect the license fees thus contracted for, the company set up as a defense that the contract was ultra vires and void. Mr. Justice Dixon, delivering the opinion of the court, thus disposes of this question: "As the Legislature was itself the representative of the general public, and had power to grant unconditionally to the company the right to construct its railroad through the streets of Jersey City, the fact that the right was granted upon the condition that the consent of the common council should first be obtained indicates that such consent might be given, or withheld, on grounds of advantage, or disadvantage, to the local public, represented by the municipal body. The construction of the railroad through the streets of Jersey City might, in various ways, lead to an increase in the burdens of the municipality, and its consent was made requisite, doubtless, in order that provision should be made to meet, or mitigate, these burdens. What the provision should be the Legislature did not prescribe, and, so long as it was satisfactory to the city and the company, other persons were not concerned. These parties chose, by the ordinance of the council, and its acceptance by the company, to put the provision in the form of an annual contribution by the latter company to the municipal treasury, graduated by the company's use of the streets, and we see no reason to question their power of doing so, or the legality of their bargain."

We are unable to perceive any distinction, from a legal standpoint, between the cited case and that now under consideration. The ordinance of February 12, 1894, was admittedly passed by the board of works, under the authority conferred upon it by the supplement to "An act concerning street railroad companies," approved March 11, 1893 (Gen. St. p. 3210), which provides in its first section that any street railway company may use electric motors as the propelling power of its cars, instead of horses, provided it shall first obtain the consent of the municipal authorities having charge of the streets on which it is proposed to use such motors, and further provides, in its second section, that such municipal authorities may also, when they deem it proper, authorize the use of poles to be erected in the public streets, with wires strung thereon, for the purpose of supplying the motors with electricity. The substitution of a power which would enable the cars of these companies to be operated at a much higher rate of speed than was possible when drawn by horses, thereby naturally tending to drive other vehicles off those portions of the highway occupied by their tracks, and thus increasing the wear and tear upon the remaining portions thereof, and rendering more frequent repaving of the streets necessary, and the erection of poles in the streets, with wires strung thereon, charged with a dangerous current of electricity, tend in fully as great a degree to an increase in the burdens of the municipality as does the original construction of the railroad; and if the Legislature, as was held in the Jersey City Case, made the consent of the municipality requisite, in that case, to the original construction, in order that provision should be made to meet, or mitigate, the municipal burdens growing out of such construction, a similar object must have been intended by that body in requiring the consent of the municipality to the change in motive power by these companies, and the accompanying erection of poles and wires in the public streets. The fact that the provision which was made by the parties in the present case differs from that made in the case cited in no wise differentiates the cases, for in each of them the Legislature left it to the municipality and the corporation to mutually agree upon such provision as should be satisfactory to both of them. In the case cited it took the form of an annual contribution to the city treasury; in the present case it took the form of an assumption by the company of the burden of repaving a portion of those streets through which its roads ran, whenever, in the judgment of the municipality, such repaving should become necessary or advisable. The selection of the one method of making such provision is as equally within the power of the contracting parties as is the other, and the legality of the bargain is equally as manifest in the one case as in the other. Α feature was present in the Jersey City Case

which is absent from that before us, namely, that subsequent to the passage of the ordinance in that case, and its acceptance by the corporation, the Legislature passed a supplement to the company's charter, by which it expressly approved the conditions imposed by the ordinance. But a reading of the opinion delivered in the case shows that the supplement only furnished an additional reason for considering the contract valid, and that the same conclusion would have been reached had no such supplement been passed.

The contention contained in the third specification of causes of demurrer, that the effect of the act of March 23, 1900, providing for the taxation of all the property and franchises of corporations using or occupying public streets or highways, is to relieve the defendant from the burden of repaving assumed by its predecessor by its acceptance of the ordinance, rests upon the idea that this burden is a franchise tax, and has been annulled by section 8 of the act appealed to, which declares that the franchise tax provided by that act shall be in lieu of all other franchise taxes then assessable against corporations using the public streets. It is asserted by counsel that the Court of Errors and Appeals, in Fielders v. North Jersey Street Railway Co., 68 N. J. Law, 343, 53 Atl. 404, 54 Atl. 822, 59 L. R. A. 455, 96 Am. St. Rep. 552, has declared that an ordinance imposing upon a street railway company the burden of repairing or repaving a portion of the public streets through which its roads run is a taxing ordinance, pure and simple. But this, it seems to us, is a plain misconception of what was there decided. There is a marked distinction between the ordinance under consideration in that case, and the one now before us. In that case the ordinance was a general one, imposing the burden of repairing upon all railway companies using the public streets of the city. There was no acceptance of the ordinance by the defendant, nor was there any agreement by it to perform the duties imposed, as a consideration for the grant by the municipality of any privilege or franchise. The opinion expressly states (page 347 of 68 N. J. Law, page 405 of 53 Atl. [59 L. R. A. 455, 96 Am. St. Rep. 552]) that the case was "devoid of evidence to show that any liability for repair or maintenance of the street pavement was imposed upon the defendant as a condition of its right to exercise its franchise, or that the defendant, by any contract, had undertaken such duty," and it was pointed out that for this reason, the passage of the ordinance must be considered as an exercise, either of the police power, or of the taxing power. The conclusion reached was that the burden imposed was a tax, and that its imposition was, for that reason, unlawful; but Mr. Justice Pitney, who delivered the opinion, indicates (page 346 of 68 N. J. Law, page 405 of 53 Atl. [59 L. R. A. 455, 96 Am. St. Rep. 552]) that where a burden of this nature is law

fully imposed by a municipality upon a street railway company, as a condition of the grant to it of any franchise or privilege, the acceptance of such a condition by the company constitutes a contract; the burden being assumed voluntarily by it, and not imposed upon it in invitum, which is the essence of taxation. The obligation which the present ordinance imposes, having been voluntarily assumed by the company in consideration of the privilege granted by the ordinance, and not imposed upon it as a tax, was not annulled by the act of 1900.

Other reasons are specified by the defendant in support of his demurrer, but they are based upon facts which are not set out in the declaration, and which cannot be inferred from anything contained in that pleading. A determination, therefore, of the abstract legal propositions which they present, would be a bootless task.

The plaintiffs are entitled to judgment upon the demurrer.

(73 N. J. L. 276)

SOUTH JERSEY TELEGRAPH CO. v. CITY OF WOODBURY.

(Supreme Court of New Jersey. Feb. 26, 1906.) 1. MUNICIPAL CORPORATIONS-ORDINANCESPASSAGE.

By force of the nineteenth section of the charter of the city of Woodbury (P. L. 1870, p. 609), an ordinance when put on its final passage should be the same in substance as that introduced at a previous meeting of city council. 2. SAME.

A proviso that city council may by a twothirds vote put an ordinance upon its final passage at the same meeting at which it was introduced (or materially amended) is not complied with by the mere passage of such ordinance by a two-thirds vote.

(Syllabus by the Court.)

Certiorari by the South Jersey Telegraph Company against the city of Woodbury to review an ordinance. Ordinance set aside. Argued November term, 1905, before DIXON, GARRISON, and SWAYZE, JJ.

Lewis Starr, for prosecutor. J. Boyd Avis, for defendant.

GARRISON, J. This writ brings up an ordinance directly affecting the prosecutor passed by the city council of the city of Woodbury on April 18, and approved by its mayor on April 25, 1905.

One of the reasons filed for the reversal of this ordinance is that it was not passed in accordance with the terms of the charter of the said city. The charter of the city of Woodbury (P. L. 1870, p. 602) provides in section 19 (page 609) that "No ordinance or by-law shall be enacted or passed by the said council, unless the same shall have been introduced before the said council at a previous meeting, and shall have been agreed to by a majority of said council; but said council may by a two-thirds vote, put any such ordinance or

by-law on its final passage on the same day on which the same shall be introduced."

The ordinance now before us was introduced on March 21st and was on April 4th referred to a committee with instructions to confer with the telephone company. On April 18th this committee reported to council that the ordinance was not acceptable to the telephone company, whereupon it was amended in several particulars by which it was transformed from a proposition that by its terms provided for its acceptance by the telephone company into a regulation of that company's affairs, failure to accept which made it the duty of the mayor "on the complaint of any person" to take the necessary action to remove all of the property of the company from the streets of the city and in this radically changed condition was, forthwith, put on its final passage and carried. No motion to put the ordinance on its final passage, as provided by the charter, was made or voted upon; hence the circumstance that the ordinance itself received the votes of two-thirds of the city council is without legal significance. The ordinance in its present form, having been adopted at the same meeting at which it was materially amended, is void. Cowan v. Wildwood, 60 N. J. Law, 365, 38 Atl. 22.

This result renders it unnecessary to decide the other questions that were argued, although it may not be amiss to remark that a provision in a municipal ordinance that makes it the duty of a mere executive officer to destroy property without notice to its owner and without a semblance of judicial process other than "the complaint of any person" is so extraordinary and drastic a proceeding as to suggest, at once, doubts as to its legality and to illustrate the propriety of the charter provision that a cooling time shall intervene between the introduction and the final passage of such municipal measures as amount to the dignity of ordinances.

For failure to observe this provision of the charter, the ordinance before us is set aside, with costs.

(73 N. J. L. 274)

HAUSER & SON v. RYAN. (Supreme Court of New Jersey. Feb. 26, 1906.) PRINCIPAL AND SURETY-BOND-RECITALSESTOPPEL.

An insolvency bond, admittedly the deed of the surety, recited that the debtor was in custody. Held. that the surety was estopped from denying the truth of this recital. (Syllabus by the Court.)

Certiorari to District Court of Elizabeth. Certiorari by Hauser & Son against John Ryan to review a judgment. Judgment affirmed.

Argued November term, 1905, before DIXON, GARRISON, and SWAYZE, JJ.

James C. Connolly, for prosecutors. Samuel Koestler, for defendant.

GARRISON, J. The return to this writ brings up a judgment recovered in the district court of the city of Elizabeth in an action on a bond given in insolvency proceedings executed by the prosecutor as surety for the insolvent debtor. The bond recites that such debtor "had been arrested, and is now in the custody of the sheriff," etc.

The principal argument addressed to us is that the testimony did not justify the district court in finding that the principal debtor was actually in custody when the prosecutor signed the bond. If we thought that the judge's finding of fact was unsupported by proof, the judgment would not for that reason be reversed. The bond was admittedly the deed of the prosecutor, hence its recitals estopped him from denying the truth of the facts so recited. State Bank v. Chetwood, 8 N. J. Law, 1; Hardwick v. Cox, 21 N. J. Law, 247; Seiple v. Elizabeth, 27 N. J. Law, 407; Hoboken v. Harrison, 30 N. J. Law, 73; Hudson v. Winslow, 35 N. J. Law, 437; Singer Mfg. Co. v. Elizabeth, 42 N. J. Law, 249.

The finding of fact that the debtor did not deliver himself in compliance with the condition of the bond is warranted by the testimony and establishes the breach. The fact that the debtor was at the time confined in jail on another charge is not a matter of defense.

The circumstance that the penalty of the bond was more than double the sum stated in its condition does not defeat the present action. The jurisdiction of the district court was preserved by the waiver of all excess above $300.

No error appearing, the judgment brought ap by this writ is affirmed.

was argued upon the merits. The difficulty we find in the case is that the act relating to boroughs (P. L. 1897, p. 285) makes no provision for an "acting recorder." Proceedings for violations of borough ordinances may be had before the mayor (section 10, p. 288) or the borough recorder (section 13, p. 291). We find no statute authorizing a justice of the peace of the county to act as recorder. Proceedings must be set aside for lack of Jurisdiction in the magistrate who convicted the defendant.

(73 N. J. L. 263) MANUFACTURERS' LAND & IMPROVEMENT CO. v. CITY OF CAMDEN et al. (Supreme Court of New Jersey. Feb. 26, 1906.) MUNICIPAL CORPORATIONS CHANGE OF

STREET GRADE-DAMAGES.

Under the construction of the third section of the act of March 17, 1858 (P. L. p. 415) respecting the alteration of street grades, which was put upon it by this court in Manufacturers' L. & I. Co. v. Camden, 59 Atl. 1, 71 N. J. Law, 490, the first section of the supplementary road act of May 8, 1905 (P. L. p. 448), does not apply to cities.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 925-928.j (Syllabus by the Court.)

Application by the Manufacturers' Land & Improvement Company for a writ of mandamus to the City of Camden and others. Rule discharged.

Argued November term, 1905, before GARRISON, SWAYZE, and DIXON, JJ.

James E. Hayes, for prosecutor. Edwin G. C. Bleakley, for defendant city.

DIXON, J. The relator prays for a mandamus requiring the city to take proceedings for ascertaining and assessing through commissioners the damages which the relator sustained by reason of the change of grade of Broadway in front of the relator's property, according to a city ordinance, passed December 10, 1903. On a part of this property there are buildings known as No. 2224 Broadway and in pursuance of proceedings taken by the city under the act of May 7, 1889 (P. L. p. 378), which entitles the owners of buildings in cities to damages occasioned by the alteration of street grades, an award was made to the relator on April 7, 1905, for the damages sustained by it as owner of those buildings.

The present application is to secure an award of damages for the injury done to the rest of the property, on which no building stands, and is based upon the act of May 8, 1905 (P. L. pp. 448, 449), amending sections 70, 72, 73, 74, and 75 of the road act of March 27, 1874 (Gen. St. pp. 2820, 2821). These sections of the road act are in substance transcripts of the act of March 17, 1858 (P. L. p. 415), which was repealed on January 1, 1875 (Gen. St. p. 3194, and page 3781, par. 317). Section 70 of the act of 1874, like the

act of 1889, conferred the right to damages only on persons owning buildings upon the street, while the first section of the act of 1905 so amends this section 70 as to extend the right to all persons who own property fronting on the street. But section 72 of the act of 1874 declared that the provisions of section 70 should not refer to any city, town, or borough, whose charter or any supplement thereto then existing or which should be thereafter passed, provided or should provide for assessing and paying compensation to persons injured by the making of grades. The second section of the act of 1905 merely extends this to villages.

In Manufacturers' Land & I. Co. v. Camden, 71 N. J. Law, 490, 59 Atl. 1, it was decided that the charter of Camden does not provide for assessing and paying compensation to persons injured by the making of grades; and we have found no specific supplement to that charter which does so provide. If we were at liberty to regard the question as open, we would incline to think it doubtful whether the import of said section 72 was not limited to specific charters and supplements. But in the case just mentioned it was also decided that the act of May 7, 1889, although general, "incorporated into every city charter a provision for assessing and paying compensation to persons injured by the making of grades, and so excluded the operation of sections 1 and 2 of the act of 1858" (which are sections 70 and 71 of the act of 1874), "by force of section 3 of the act of 1858" (which is section 72 of the act of 1874). We are therefore, constrained to hold that section 2 of the act of 1905 (which is substantially section 3 of the act of 1858), excludes all cities from the operation of section 1 of the act of 1905, which corresponds with section 1 of the act of 1858. On this view the relator has no right outside of that granted by the act of 1889.

The rule for a mandamus must be discharged, with costs.

When water confined in a reservoir escapes through the negligent construction or maintenance of such reservoir, adjoining landowners, whose lands are injured thereby, have a right of action to recover the damages resulting from such injury.

(Syllabus by the Court.)

Action by William J. Righter against the Jersey City Water Supply Company. Verdict for plaintiff. Rule to show cause discharged.

Argued February term, 1906. before GARRETSON, REED, and FORT, JJ.

Robert M. Clark, for plaintiff. William D. Edwards, for defendant.

FORT, J. This sult is to recover for damages done to the land of the plaintiff by the escape of waters through or under the banks of a reservoir maintained by the defendant on its land adjoining the land of the plaintiff. The reservoir is a very large one, having been constructed for the storage of water for the supply of the inhabitants of Jersey City. It covers 800 acres. The head of the reservoir is a masonry dam across the Rockaway river at Old Boonton. The upper end of the reservoir crossed the divide and encroached upon the adjoining watershed of the Troy brook at Parsippany. In order to prevent the overflow at the upper end, a large back dyke or retaining wall was constructed of earth with a masonry core. It is a half mile in length with a width of 100 feet at its base, 12 feet in width at the top, and about 25 feet in height. The core is of concrete masonry about 5 feet thick. It extends below the earth dyke into the ground from 4 to 30 feet, according to the character of the foundation. It is above the water line of the reservoir about 3 feet.

At the trial, the law of the case-at least, that declared by the court-was little disputed by the plaintiff, and not at all by the defendant. The learned trial justice put the law of the case upon the principle stated by Chief Justice Beasley in Marshall v. Welwood, 38 N. J. Law, 339, 20 Am. Dec. 394, and charged the jury that "if the escape of the water was accidental, then the plaintiff cannot recover. If it is proved to your satisfaction that its escape was due to the want of proper care and skill on the part of the defendant then the plaintiff would be entitled to recover." The case, therefore, went to the jury with the sole right for the plaintiff to recover based upon their finding, under the evidence, that the water escaped through some negligence in the defendant. We do not, in this case, have to consider whether this rule of law is the correct one or whether Fletcher v. Rylands, L. R. 1 Exch. 265, which states the English rule, states the true principle in cases of this class. The defendant contended at the trial for the rule as the learned trial justice stated it.

Is the proof then such that the weight of the evidence was against the verdict and justifies us in granting a new trial? That there is an excessive accumulation of waters on the land of the plaintiff since the filling of the reservoir cannot be doubted under the proof. The plaintiff's proof was that it was caused by seepage; that is, the water which finds its way through the bank. It may come through the bank, as it would if the core were not impervious to water, or it may escape over or under the core, because of its not being sufficiently high or deep. That the water seeps through it seems impossible to disbelieve under the proof. That this seepage results from negligent construction and faulty maintenance of the bank or