Della Sala v. Parking Authority of City of Hackensack

• Decision Date: 17 May 1954
• Docket Number: No. A--673,A--673
• Citation: 30 N.J.Super. 534,105 A.2d 440
• Parties: DELLA SALA et al. v. PARKING AUTHORITY OF CITY OF HACKENSACK. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 534

30 N.J.Super. 534

105 A.2d 440

DELLA SALA et al. v. PARKING AUTHORITY OF CITY OF HACKENSACK.

No. A--673.

Superior Court of New Jersey.

Appellate Division.

Argued April 26, 1954.

Decided May 17, 1954.

Marvin A. Stern, Jersey City, argued the cause for the plaintiffs-appellants (Nathan Pearlman, Jersey City, attorney).

Ralph W. Chandless, Hackensack, argued the cause for the defendant-respondent (Dominick Fondo, Hackensack, attorney).

Before Judges EASTWOOD, JAYNE and SMALLEY.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

This is an appeal from the judgment of the Superior Court, Law Division, awarding $8,900 to the appellants as damages to their property, a portion of which was taken by condemnation of the Hackensack Parking Authority.

The plaintiffs owned a parcel of land in the commercial district of Hackensack, being approximately 71 feet in frontage on Warren Street and running to a depth of 205 feet, with a width in the rear of approximately 61 feet. The parcel of land taken by condemnation is the rear 105.75 feet, leaving the Warren Street front parcel to a depth of 100 feet. There was erected on the parcel taken four concrete block garages that were being rented for $6 each per month and two hollow-tile buildings, one designated and rented as a machine shop and the other a feed and fertilizer warehouse, at $75 per month. On the remaining portion, not taken, there is a two-family brick dwelling.

The jury viewed the premises in question and after hearing the proofs proffered by the parties, awarded the plaintiffs the sum of $8,900. From the ensuing judgment the plaintiffs appeal.

The plaintiffs contend that the trial court erred in that it refused to permit them to prove by an expert the reproduction costs of the buildings which were admittedly 50 or 60 years old (one containing an inscription of 1842); in denying their expert to testify both on direct and rebuttal as to reproduction costs, although permitting defendant's expert, over objection, to testify thereto; that the verdict is against the weight of the evidence; that certain remarks and questions by the court were prejudicial to the plaintiffs; that the judgment is erroneous in that it failed to include an allowance of interest on the award from the date of taking and that the trial court erred in refusing to charge the jury as requested by plaintiffs.

In taking the plaintiffs' property, the Parking Authority of the City of Hackensack was acting under the provisions of L.1948, c. 198 (R.S. 40:11A--1 et seq., N.J.S.A.), as well as its powers of eminent domain under the provisions of R.S. 20:1 et seq., N.J.S.A.

The record discloses that plaintiffs' expert testified as to his opinion of the value of the property taken and then plaintiffs attempted to elicit from him testimony as to the cost of reproduction of the old buildings on the land. This the court would not permit, stating:

'It is a total of the land and the buildings. You can't break up and say a building is worth so much, and the land is worth so much, any more than you can evaluate a tree or bush on it. That is what enhances the value of the land.'

The court similarly refused to permit a building contractor, proffered by plaintiffs, to testify as to reproduction costs.

The defendant's expert was called and testified that in his opinion the value of the property before taking was $28,500, and after taking was $19,600, and that the $8,900 difference was the damage plaintiffs sustained by the taking. On cross-examination, the plaintiffs posed this question: 'Q. Mr. Schwenn, would you mind telling us on what basis you have appraised this property?' When Mr. Schwenn stated one of his bases for his opinion as to value was reproduction cost less depreciation, the court, over plaintiffs' objection, stated: 'I will allow it, how he arrived at his value, so the jury can determine whether it is any good or not. I will allow it. It is an entirely different proposition than bringing in somebody and asking him what the replacement cost of a 4-garage is. Go ahead.' It was in rebuttal to the answer received to this question that plaintiffs' counsel later sought unsuccessfully to have his expert testify as to the cost of reconstruction of the buildings as of December 12, 1952.

An examination of the authorities respecting the general rule regarding the admissibility of evidence of reproduction costs as an aid to valuation in condemnation proceedings leads us to believe that it is a matter within the discretion of the trial court, and that in those instances where it has been allowed the circumstances warranting its admission were that the improvement was of an unusual kind or description with a value not readily discernible, or that there was an absence of comparable sales to indicate comparable values.

The general view is that the amount of recovery is to be measured by the value of the land, together with the improvements and fixtures thereon, viewed as a whole and not separately. To determine the market value as vacant property alone, and then to ascertain to what extent, if any, the improvements enhance such value, is not allowable under a statute requiring assessment of the value of property sought to be condemned and of all improvements thereon pertaining to the realty. * * * No damages may be recovered for the cost of erecting new buildings to replace those taken in the eminent domain proceeding.' 18 Am.Jur., Eminent Domain, sec. 253, pp. 892, 893.

The measure of damages is not the market value of the land plus reproduction costs of improvements, but the market value of the property as improved in view of all uses to which it is adaptable and available. People v. Ocean Shore Railroad, Inc., 32 Cal.2d 406, 196 P.2d 570, 6 A.L.R.2d 1179 (Sup.Ct.1948). Evidence of the structural value on the land is held to be inadmissible; that evidence of the cost of a new building erected for business purposes is no proof of the value of an old building condemned for a public use.

'* * * evidence of the structural value of the buildings is admissible for the purpose of showing the total value, where they are well adapted to the kind of land on which they are erected, and enhance its value. Where the property has no established market value, the cost of construction may furnish some evidence as to the value of the improvement.' 18 Am.Jur., supra, sec. 346, p. 990; City of Los Angeles v. Klinker, 219 Cal. 198, 25 P.2d 826, 90 A.L.R. 148.

Vide Banner Milling Co. v. State, 240 N.Y. 533, 148 N.E. 668, 41 A.L.R. 1019 (Ct.App.1925), writ of certiorari denied, 269 U.S. 582, 46 S.Ct. 107, 70 L.Ed. 423 (1925) (flour mill); Lebanon & Nashville Turnpike Co. v. Creveling, 159 Tenn. 147, 17 S.W.2d 22, 65 A.L.R. 440 (Sup.Ct.1929) (turnpike).

Testimony as to the original cost of a building designed for business construction is admissible unless the trial judge, in the exercise of his discretion, shall find that the time or circumstances of the original construction are so remote from those existing at the time of the taking that the original cost can have no reasonable bearing on the market value in issue, or shall find that such market value can be adequately shown by evidence of sales of comparable property. 172 A.L.R., pp. 238, 244. In those jurisdictions allowing such evidence it depends upon the trial court's finding that it will be an aid to the jury in assessing damages. Patch v. City of Boston, 146 Mass. 55, 14 N.E. 772 (Sup.Jud.Ct.1888); Stone v. Commonwealth, 181 Mass. 438, 63 N.E. 1074 (Sup.Jud.Ct.1902).

The New Jersey rule for establishing what is the measure of just compensation when the whole property is taken, is aptly stated in the case of Butler Hard-Rubber Co v. Mayor, etc., of City of Neward, 61 N.J.L. 32, 52, 40 A. 224, 231 (Sup.Ct.1897), to be: '* * * the market value of the property, as between an owner willing to sell and a purchaser desiring to buy * * *' and "If part only be taken, or, in the...