Kean v. Union County Park Comm'n

• Citation: 129 N.J.Eq. 67,18 A.2d 279
• Decision Date: 19 February 1941
• Docket Number: 129/602.
• Parties: KEAN et ux. v. UNION COUNTY PARK COMMISSION et al.
• Court: New Jersey Court of Chancery

18 A.2d 279

129 N.J.Eq. 67

KEAN et ux.

v. UNION COUNTY PARK COMMISSION et al.

129/602.

Court of Chancery of New Jersey.

Feb. 19, 1941.

Syllabus by the Court.

Injunction against the unlawful or Improper exercise of the power of eminent domain constitutes an independent head of equity jurisdiction uncontrolled in its exercise by the principles which regulate injunctive relief against trespass.

Suit by John Kean and Mary Alice Barney Kean, his wife, against the Union County Park Commission and others to enjoin a condemnation proceeding.

Injunction granted.

Fred W. DeVoe, of New Brunswick, and Francis A. Gordon, of Elizabeth, for complainants.

David Armstrong, of Rahway, for defendant Union County Park Commission.

STEIN, Vice Chancellor.

On June 12, 1931, the Union County Park Commission (hereinafter referred to as the Commission) brought proceedings to condemn for public park purposes 22.6 acres of complainants' lands situated in the Township of Hillside, Union County. R.S. 40:37-35, N.J.S.A. 40:37-35. Notice of lis pendens was filed and commissioners appointed by the Supreme Court on June 23, 1931, and the commissioners directed to file their report on or before September 10, 1931. The commissioners failed to report. No order extending the time to report was entered and the powers of the commissioners under R.S. 20:1-10, N.J.S. A. 20:1-10, ceased. Under the statute, however, new commissioners in that proceeding may yet be appointed to assess the damages upon an application to a justice of the Supreme Court upon such notice as the justice may direct.

On April 12, 1940, the Commission by resolution authorized a second proceeding affecting the same 22.6 acres of land, plus an additional 5.622 acres contiguous thereto. Three months later on July 26, 1940, the lis pendens in the first proceeding was discharged, and the second proceeding commenced on November 15, 1940. Thus it appears that the determination of the Commission to condemn the 22.6 acres of land involved in the first proceeding was not really abandoned as a matter of fact by the Commission when the second was ordered.

Not only was the determination on the part of the Commission to condemn in the first proceeding the 22.6 acres of land never really abandoned as a matter of fact, but it also appears that such proceeding by the mere filing of the discharge of the lien of the notice of lis pendens was not abandonment as a matter of law as provided for by R.S. 20:1-30, N.J.S.A. 20:1-30. The statute provides that the proceedings "may" be abandoned at any stage of the proceedings up until twenty days after verdict of the jury, "upon payment to the owners and other parties who have appeared before the commissioners or the jury of their reasonable costs, expenses and counsel fees to be determined by a justice of the Supreme Court or judge of the Circuit Court, and upon filing a discharge of the lien of the notice of lis pendens". (Italics mine). In Teaneck Township v. Mercer, 124 N.J. L. 120, 11 A.2d 103, 105, the Court of Errors and Appeals held in construing the statute: "The statutory right of the township to abandon the proceedings to condemn is conditioned upon the payment of the reasonable costs, expenses and counsel fees. * * * The condition must, in some way, be met." (Italics mine). Complainants' counsel was at liberty to apply to a justice of the Supreme Court or a judge of the Circuit Court to fix such costs, expenses and counsel fees, but no duty so to do is imposed upon such counsel by express provision or implication. And such application, if made, would carry with it implied acquiescence on the part of the complainants in such abandonment, which counsel for complainants under the circumstances had a right and a duty to avoid.

It is concluded, therefore, that the first proceeding was not abandoned in fact or in law when the second proceeding was instituted.

The complainants bring this bill of complaint to enjoin the second condemnation proceeding.

On the return of an order to show cause issued on the filing of the bill the Commission in answering affidavits gave as its reasons for not prosecuting to completion the first proceeding in the intervening nine years, (1) the "reason for the decision of the Park Commission not to spend capital funds in the depression period for the acquisition of land was the program urged on public bodies by the Federal Government to spend their available funds on projects that would create jobs." Conceivably, the development of complainants' lands for park purposes would be such a project. And (2) "During the years from 1935 to 1938 there was a continuous movement on foot in Hillside and Union to press for parking of the Elizabeth River through these communities and during those years the Park Commission was urged by delegations from these communities to acquire lands and proceed with the project. * * As the result of a reconsideration of this project the Commission came to the conclusion that it was necessary and desirable to acquire the entire tract...