Buckeye Pipe Line Co., Application of

• Citation: 89 A.2d 289,20 N.J.Super. 123
• Decision Date: 22 May 1952
• Docket Number: No. L--5358,L--5358
• Parties: Application of BUCKEYE PIPE LINE CO.
• Court: New Jersey Special Statutory Court

Page 123

20 N.J.Super. 123

89 A.2d 289

Application of BUCKEYE PIPE LINE CO.

No. L--5358.

Special Statutory Court of New Jersey.

May 22, 1952.

Herr & Fisher, Flemington (Ryman Herr, Flemington, appearing), attorneys for petitioner.

Henry F. Schenk, Flemington (Harry Krieger, Newark, appearing), attorney for respondent Thomas Lloyd Faubel.

Morgan R. Seiffert, New Brunswick, attorney for New Jersey Turnpike Authority, Amicus curiae.

Theodore D. Parsons, Atty. Gen. (Sackett M. Dickinson, Deputy Atty. Gen., appearing), for New Jersey Highway Department, Amicus curiae.

Before FREDERIC R. COLIE, Judge of the Superior Court of New Jersey, sitting as a Special Statutory Court.

COLIE, J.S.C.

This is a motion to dismiss the petition and vacate an order appointing commissioners in a condemnation proceeding. An opinion was prepared and filed dismissing the petition and vacating the order appointing commissioners. Thereafter, counsel for the New Jersey Turnpike Authority called to the court's attention the fact that its interpretation of R.S. 20:1--3, N.J.S.A. would jeopardize many titles which the Turnpike Authority and the Highway Department had theretofore acquired. At the court's suggestion, the Turnpike Authority and the Highway Department appeared, the matter was reargued and briefs were filed.

The Buckeye Pipe Line Company presented a petition pursuant to Title 20, Revised Statutes of New Jersey, N.J.S.A., seeking an order appointing three commissioners to assess damages for an easement or right of way, to fix a date for hearing of the petition and a date on or before which the commissioners' report should be filed, and directing notice to the owner and persons interested in the lands through which the easement or right of way will pass.

The petition recites that Buckeye, an Ohio corporation authorized to do business in this State, is empowered to own maintain and operate pipe lines 'for the transportation as a common carrier of petroleum and petroleum products for the Public'; that it has power to take lands for public use pursuant to R.S. 48:10--1, N.J.S.A., providing: 'Pipe line companies, associations and corporations may acquire by condemnation land and other property necessary for public use for right of way in the manner prescribed by chapter 1 of the title Eminent Domain (§ 20:1--1 et seq.)'; that it adopted a resolution, annexed to the petition, 'determining that the lands and premises hereinafter described shall be acquired for use as a right of way for the construction, maintenance and operation of a pipe line 16 inches in diameter.' The lands are described as situate in the Township of Raritan, Hunterdon County, New Jersey, and identified by metes and bounds and said to embrace 72.51 acres more or less. The petition then names Thomas Lloyd Faubel as owner and asserts no other person or corporation appears of record to have an interest therein, except Anna Faubel, who has or claims an inchoate right of dower; New Jersey Power and Light Company by reason of grant for an electric pole line; the Land Bank Commissioner, address unknown, by reason of a mortgage on said land, and Township of Raritan by reason of taxes and assessments levied thereon. The petition then recites that Buckeye proposes to construct a pipe line 'for the transportation of petroleum and petroleum products through same to or for the public in New Jersey and elsewhere' and that the pipe line will be 48.82 miles long, extending from Linden, Union County, to the Pennsylvania-New Jersey state line just south of Frenchtown, Hunterdon County, and into Pennsylvania; that 'it is necessary * * * to condemn an easement or right of way fifty feet in width * * *,' and describes the right of way by courses and distances, approximately 2,160 feet long and 50 feet wide. Lastly, the petition recites an unsuccessful endeavor to agree with the owner upon a price for the right of way.

The order fixed the time and place for the appointment of commissioners to assess the damages upon the taking and 'ordered that a notice of such hearing be given to the owner of the lands and property described in said petition and to all persons interested therein as set forth in said petition, which said notice shall be served upon such of the persons as reside in this State either personally or by leaving the same at their respective residences with a member of the household above the age of 14 years, before the 1st day of November, 1951.

'It is further ordered that said notice be published in the Hunterdon County Democrat on the 25th day of October, 1951, and on the 1st day of November, 1951, and mailed to each of the several parties interested in the said lands and property who reside outside of the state and whose addresses can be ascertained on or before the 1st day of November, 1951, with postage prepaid thereon.'

The motion to dismiss is predicated upon the following grounds: (1) the notice of hearing of the petition was not published as required by statute (R.S. 20:1--3, N.J.S.A.); (2) the proof of publication filed fails to show proper publication of notice of hearing as required by R.S. 20:1--3, N.J.S.A.; (3) Buckeye Pipe Line Company is not a public utility of this State; (4) the petition on its face fails to reveal a prima facie right on the part of Buckeye to take lands by condemnation because: (a) as a foreign corporation, Buckeye has no right to take property by condemnation; (b) petition fails to aver lands sought to be taken are 'necessary for public use' as required by R.S. 48:10--1, N.J.S.A.; (c) the moving papers are fatally defective for failure to comply with the applicable statute.

The first matter for consideration is to determine the court's function and jurisdiction in the present situation.

The Eminent Domain Act, R.S. 20:1--1 et seq., N.J.S.A., vests the appointment of condemnation commissioners in one of the judges of the Superior Court. As such he is an agent of the Legislature and must appoint commissioners upon the ascertainment of certain facts prescribed by the Legislature. Bergen County Sewer Authority v. Borough of Little Ferry, 5 N.J. 548, 76 A.2d 680 (1950). As stated in Ryan v. Housing Authority of City of Newark, 125 N.J.L. 336, 15 A.2d 647, 651 (Sup.Ct.1940):

'The function of the special statutory tribunal of first instance is to appoint the commissioners to appraise the lands and assess the damages, if the petition on its face reveal(s) a Prima...