Brown v. Murphy

• Decision Date: 07 June 1946
• Docket Number: No. 8.,8.
• Citation: 134 N.J.L. 318,47 A.2d 595
• Parties: BROWN et al. v. MURPHY et al.
• Court: New Jersey Supreme Court

134 N.J.L. 318

47 A.2d 595

BROWN et al.

v.MURPHY et al.

No. 8.

Supreme Court of New Jersey.

June 7, 1946.

Mandamus proceeding by Samuel P. Brown and others against Vincent J. Murphy and others to require the City of Newark and the governing body of the city to prosecute proceedings in condemnation. On demurrer to the alternative mandamus.

Demurrer stricken with leave to make return to the alternative writ.

May term, 1946, before CASE, C. J., and HEHER, J.

Herbert J. Hannoch, Morris Weinstein, and Hannoch & Lasser, all of Newark, for relators.

Joseph A. Ward and Thomas L. Parsonnet, both of Newark, for respondents.

CASE, Chief Justice.

The issue is one of law raised by respondents demurrer to relators' alternative writ of mandamus. The writ directs the City of Newark and the governing body of the city to prosecute proceedings in condemnation or signify cause to the contrary.

The city is authorized (R.S. 40:8-2 et seq., N.J.S.A.) to acquire, construct, own and operate an airport and to acquire by purchase or condemnation land needed for that purpose. The city, pursuant to its statutory authority, constructed and established the Newark Municipal Airport and operated the same in a proprietary capacity, leasing it or portions thereof to airlines and others at various rentals; and in so doing it had need for and took control and possession of relator's lands. On or about April 1, 1942, the city leased the airport, including relators' lands, to the United States of America at a rental of $85,000 per annum. On November 30, 1942, ch. 331, P.L.1942, N.J.S.A. 40:8-1 note, became effective. That statute provided that any municipality then constructing an airport under a contract with a federal agency and which was or was to be used by the armed forces of the United States might acquire lands or rights therein by gift, devise or purchase or by condemnation under the eminent domain act and might enter upon and take the same in advance of making compensation where for any reason the municipality could not acquire the property by agreement and that a municipality, exercising the right of condemnation and entering upon and taking lands in advance of making compensation, should present a petition and prosecute proceedings to fix the compensation to be paid the owner or owners. Thereafter the city renewed the lease of the airport, including relators' lands, to the United States of America, and thereby continued, and took, possession of relators' lands under the authority of that statute. Among the constructions made by the city was an airport runway on a portion of relators' lands. The taking of the lands was without the knowledge or consent of the relators or their predecessors in title and without compensation to them.

It is advanced by relators that under the constitutional prohibition (Constitution Art. I, para. 16, N.J.S.A.) against taking private property for public use without making just compensation therefor and under the several statutes the city and its government, having refused and neglected to negotiate for the purchase and to institute proceedings to condemn, are properly subject to a court mandate to compel the institution of condemnation proceedings. The demurrer filed by the respondents sets up that the determination to acquire the property is vested solely in the Board of Commissioners of the City of Newark, that the acquisition by eminent domain is a permissive but not a compellable proceeding which lies at the sole...