Brown v. Murphy Rice
| Decision Date | 12 September 1947 |
| Docket Number | Nos. 5, 6.,s. 5, 6. |
| Citation | 136 N.J.L. 183,54 A.2d 764 |
| Parties | BROWN et al. v. MURPHY et al. RICE v. SAME. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Supreme Court.
Mandamus proceedings by Samuel P. Brown and others, relators, and by Alexander S. Rice, administrator with will annexed, relator, against Vincent J. Murphy and other, and the City of Newark, a municipal corporation, to compel the respondents to institute and thereafter diligently prosecute condemnation proceedings for the purpose of acquiring, in fee simple, certain lands of the relators. From judgments of the Supreme Court in favor of the relators, the respondents appeal.
Judgments affirmed.
See also 134 N.J.L. 318, 47 A.2d 595.
Hannoch & Lasser, of Newark (Herbert J. Hannoch and Morris Weinstein, both of Newark, of counsel), for relators-respondents.
Thomas L. Parsonnet, of Newark (Joseph A. Ward, of Newark, of counsel), for respondents-appellants.
The judgments of the Supreme Court under appeal granted peremptory writs of mandamus, commanding the appellants to ‘forthwith institute and thereafter diligently prosecute’ condemnation proceedings for the purpose of acquiring, in fee simple, certain lands of the respondents.
Since counsel argued and briefed the Brown case and submitted the Rice case as presenting identical issues for determination, our disposition of the Brown case will be controlling in the Rice case.
The City, pursuant to statutory authority (R.S. 40:8-2 et seq., N.J.S.A.), established, constructed and operated the Newark Municipal Airport. Sometime during or prior to 1942, the City took possession and control of respondents' lands and incorporated them into its airport, and a runway of the airport has been constructed over a portion of said lands. When the City, after the taking, refused to negotiate with the owners for the purchase of their lands, or to institute proceedings to condemn, the owners obtained an alternative writ of mandamus to compel the institution of condemnation proceedings. The City's demurrer to this writ was stricken, but leave was granted to make return. The City's return admitted that the lands had been assessed for taxes against the relators and their predecessors in title for more than 45 years, that the taxes so assessed had been paid, including taxes for 1945, and that the City had possession and control of the lands since long prior to 1942; but grounded its refusal to negotiate or institute proceedings to condemn on the claim that ownership of the lands was in the City by adverse possession, and that relators had no right or interest therein. On a framed issue, the Essex County Circuit Court determined that title to the lands had not vested in the City by adverse possession and that the relators were the owners thereof.
It is admitted that the City had and has the right to acquire these lands by purchase or condemnation under R.S. 40:8-5, N.J.S.A. The City argues that the power to condemn given by this statute is permissive only, that the discretion as to its exercise is vested in the municipality, and that mandamus should not be...
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