Bowers v. Town of Bloomfield

• Decision Date: 03 March 1913
• Citation: 86 A. 428,81 N.J.Eq. 163
• Parties: BOWERS v. TOWN OF BLOOMFIELD.
• Court: New Jersey Supreme Court

86 A. 428

81 N.J.Eq. 163

BOWERS

v. TOWN OF BLOOMFIELD.

Court of Errors and Appeals of New Jersey.

March 3, 1913.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Condemnation proceedings by the Essex County Park Commission against Philip J. Bowers. From a decree (83 Atl. 462) advising that special assessments be paid to the Town of Bloomfield out of the award, Bowers appeals. Affirmed.

Ralph E. Lum, of Newark (Lum, Tamblyn & Colyer, of Newark, on the brief), for appellant.

Charles F. Kocher, of Newark, for respondent Town of Bloomfield.

SWAYZE, J. Lands of the appellant were condemned at the instance of the Essex county park commission. At the time of filing the petition certain improvements had been made by the town of Bloomfield and the city of East Orange upon the petition of the appellant; some were then complete, others were completed the day after. The land was liable to a special assessment for benefits therefor. There was an appeal from the award of the commissioners, and while the proceedings were pending assessments were made and confirmed. Thereafter, upon the verdict of a jury ascertaining the value of the land, the park commission obtained an order for the payment of the money into the Court of Chancery pursuant to the statute. It was then agreed between the parties that $6,000 should be paid into court, the balance of the award paid to the appellant, and that he should forthwith file his petition against the city of East Orange (which was interested in the same way as Bloomfield) and the present respondent, to the end that the rights of the appellant and the municipalities to the fund might be determined. The Vice Chancellor advised a decree that the assessments for benefits be paid to the municipalities.

The view taken by the Court of Chancery was that the title did not pass until the park commission paid the amount awarded by the jury, and that in the meantime the assessments had become liens upon the land. We think it unnecessary to consider this question. The real question is whether the park commission had the right to have the liens, assuming that they existed, discharged out of the fund. That question is not determined by the situation at the time of payment of the award. In Sherwin v. Wigglesworth, 129 Mass. 64, it was held that the owner was not chargeable with taxes and betterments assessed upon the land while the proceedings were pending where the taxes were assessed and the betterments begun after the petition was filed. The same result has been reached in New York by allowing an award in addition to the value of the land when the proceedings are begun of subsequent taxes and assessments for improvements authorized thereafter. In re Mayor, etc., of City of New York, 40 App. Div. 281, 58 N. Y. Supp. 58.

The decision of the Special Term to the contrary in a contemporaneous case was subsequently reversed, and the judgment of reversal affirmed by the Court of Appeals. In re Riverside Park Extension, 27 Misc. Rep. 373, 58 N. Y. Supp. 963; In re Mayor, etc., of City of New York, 59 App. Div. 603, 69 N. Y. Supp. 742; 167 N. Y. 627, 60 N. E. 1116. This result is manifestly equitable. The landowner can get only the value of his land at the date of filing the petition to condemn; he ought not to be assessed for subsequent betterments which cannot profit him. The present case is, however, different. Here the improvements were made at the time the petition was filed; the increased value of the land therefrom had already accrued and must be presumed to have been embraced in the award; there is no suggestion that the value due to the betterments had increased between that date and the date of the assessments, nor that the amount of the assessments exceeded the amount of the accrued benefit at the date of filing the petition in condemnation. The improvements had been made upon the petition of the landowner himself; and, if he is to be free of paying the municipalities for the value they have added to his property, he will receive the benefit of that increased value at the expense of the municipalities. The case is one of first impression as far as we have been able to ascertain, and we are referred to no case precisely in point. We must, therefore, rely upon the application of...