Kean v. Union County Park Comm'n

• Decision Date: 20 October 1941
• Docket Number: No. 229.,229.
• Citation: 22 A.2d 256
• Parties: KEAN et ux. v. UNION COUNTY PARK COMMISSION.
• Court: New Jersey Supreme Court

22 A.2d 256

KEAN et ux.

v. UNION COUNTY PARK COMMISSION.

No. 229.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1941.

Syllabus by the Court.

1. The right of a property owner to costs upon the abandonment of condemnation proceedings arises only if the commissioners have filed a report or the jury has rendered its verdict in the proceeding.

2. Property owner who suffers damage by reason of condemnation proceedings subsequently legally abandoned does not have a right of action for damages, such loss being damnum absque injuria.

DONGES, Justice and THOMPSON, Judge, dissenting.

Appeal from Court of Chancery.

Suit by John Kean and wife against the Union County Park Commission to enjoin a condemnation proceeding. From an order granting injunction, 129 N.J.Eq. 67, 18 A.2d 279, the defendant appeals.

Reversed and bill dismissed.

David Armstrong, of Rahway, for appellant.

Fred W. DeVoe, of New Brunswick (Francis A. Gordon, of Elizabeth, of counsel), for respondents.

COLIE, Justice.

The Union County Park Commission appeals from an order of the Court of Chancery, dated March 10, 1941, whereby it was "enjoined and commanded to desist and refrain from proceeding further against the complainants in the condemnation proceeding commenced November 15th, 1940, insofar only as such proceeding relates to and embraces the taking of complainants' lands described in the proceedings instituted by the said defendant, Union County Park Commission, a body politic of the County of Union and State of New Jersey, on June 12th, 1931, until the further order of this Court in the premises."

On June 12, 1931, the Union County Park Commission (hereinafter referred to as Park Commission) commenced condemnation proceedings against John Kean and Mary Alice Barney Kean (hereinafter referred to as the Keans) seeking to acquire for park purposes 22.6 acres of land in the Township of Hillside, Union County. The 22.6 acres was part of a larger tract of 28.2 acres owned by the Keans. On June 15, 1931, notice of lis pendens was filed and on June 23, 1931, three commissioners were appointed by Mr. Justice Case and ordered to report on or before September 10, 1931. On July 11, 1931, the Keans sued out a writ of certiorari to review the order appointing commissioners. A return was made to the writ, reasons filed and thereafter no steps taken until January, 1932, when the Supreme Court dismissed the writ for failure of the prosecutors to prosecute diligently. Kean v. McLeod, 158 A. 106, 10 N.J.Misc. 118. In the interim between June 15,

1931, the date of institution of the condemnation proceedings, and January 20,

1932, when the certiorari proceedings were dismissed, the powers of the commissioners ceased, since no report was made within the time limited in the order appointing them. R.S. 20:1-10, N.J.S.A. 20:1-10. Thus the matter rested, without any legal steps by either party, until July 26, 1940, when, in accordance with resolutions of the Park Commission, the notice of lis pendens filed in 1931 was discharged and four months later the Park Commission filed a petition seeking to condemn the 28.2-acre tract. Hearing on the Park Commission's application for appointment of commissioners was continued from time to time, but before the appointment of commissioners, the Keans filed a bill in chancery praying for a restraint of the 1940 condemnation proceedings. After argument on the order to show cause the Vice Chancellor advised the order of March 10, 1941, restraining the Park Commission as hereinabove set forth.

From the schedules annexed to the bill of complaint and the answering affidavit of the Park Commission, it appears that in 1931 the Park Commission offered and the Keans refused $43,000 for the 22.6-acre tract; that it had been appraised, as of June 12, 1931, at $78,000 and as of November 15, 1940, at $39,000.; also that in September 1930, the entire 28.2 acres were appraised at $128,569. It further appears that from 1932 through 1939 the acquisition of the Kean...