(concurring in affirmance). In this fact-distinctive case the chancellor found on persuasive and largely undisputed proof that beneficial use of plaintiffs’ premises — referring to the strip adjacent to Telegraph road — cannot he made consistent with the ordinance we scrutinize. To uphold the municipal restriction in circumstances so proven would amount to an unconstitutional taking of private property without due process and without payment of just compensation. The ordinance as applied to the premises in question thus offends supreme authority and cannot stand.
I do not share concern of Mr. Justice Edwards that the decree below, if upheld, will unsettle and threaten stability of zoning ordinances generally. The present defendant offered no proof of substance, in answer to that submitted by plaintiffs, on which this Court of equity might with propriety find that the strip can be devoted, in whole or in part and within reason, to the limited use permitted by such ordinance. In future cases, where such answering proof is available, it is to be presumed that the defendant, municipality will protect its assailed ordinance through forceful advancement of that proof.
I concur in affirmance for stated reasons.