Monmouth Consol. Water Co. v. Blackburn

• Decision Date: 23 February 1962
• Docket Number: Nos. L--6799,L--19053,s. L--6799
• Parties: MONMOUTH CONSOLIDATED WATER COMPANY, a corporation of the State of New Jersey, Plaintiff, v. Ildon R. BLACKBURN et al., Defendants. MONMOUTH CONSOLIDATED WATER COMPANY, a corporation of the State of New Jersey, Plaintiff, v. Charles D. FLOCK et al., Defendants. MONMOUTH CONSOLIDATED WATER COMPANY, a corporation of the State of New Jersey, Plaintiff, v. George J. FREDERICKS, Defendant.
• Court: New Jersey Superior Court

Page 377

72 N.J.Super. 377

178 A.2d 377

MONMOUTH CONSOLIDATED WATER COMPANY, a corporation of the

State of New Jersey, Plaintiff, v. Ildon R. BLACKBURN et al., Defendants.

MONMOUTH CONSOLIDATED WATER COMPANY, a corporation of the

State of New Jersey, Plaintiff, v. Charles D. FLOCK et al., Defendants.

MONMOUTH CONSOLIDATED WATER COMPANY, a corporation of the

State of New Jersey, Plaintiff, v. George J. FREDERICKS, Defendant.

Nos. L--6799, L--19053.

Superior Court of New Jersey, Law Division.

Feb. 23, 1962.

Potter & Fisher, Long Branch, attorneys for plaintiff (Maurice A. Potter, Long Branch, appearing).

Parsons, Canzona, Blair and Warren, Red Bank, attorneys for defendants (Theodore D. Parsons, Red Bank, appearing.)

ASCHER, J.S.C. (temporarily assigned).

Awards in the above captioned cases were made by commissioners appointed by the court, R.S. 20:1--1 et seq., N.J.S.A., and in each suit appeals were taken to the Superior Court, in accordance with N.J.S.A. 20:1--16, by the plaintiff and the respective defendants, the reason being that none of the parties was satisfied, plaintiff contending that the awards were excessive, and defendants contending that they were inadequate and did not properly assess the damages for the loss and diminution of riparian rights of certain of defendants.

Plaintiff Monmouth Consolidated Water Company, a corporation of the State of New Jersey, hereinafter referred to as 'water company,' is a public utility corporation, duly authorized and empowered to take lands and property for public use by virtue of R.S. 48:19--15, N.J.S.A. The following awards of damages were tendered and paid to the respective defendant, as indicated by the report of the commissioners, in accordance with the order of the Superior Court dated September 9, 1960:

                In the Blackburn et als. suit       $8,866.00
                In the Flock et ux., et als. suit   10,267.40
                In the Fredericks suit              11,693.00
                                                   ----------
                                Total              $30,826.40
                

These appeals were consolidated for trial by the order of Judge Mariano, dated April 18, 1961, trial by jury being waived.

The trial of these cases was protracted and resulted in some 1221 pages of transcript. The takings by the water company involved lands running to the center of abutting streams and some portion of farm lands of the owners. At least two of the landowners were using water from the abutting streams for irrigation.

The basic issues, in connection with which voluminous testimony and evidence was adduced before this court, involved claims for the actual taking of lands, damage to the remainder after the taking, replacement cost for the use of water previously enjoyed, drainage rights, the possible cost of fencing, together with loss of access to the streams.

It is contended by the water company that in each case the lands taken were low, swampy areas, bordering head-stream waters of Swimming River and low parts of steep slopes on the side of the ravines in which such streams run. In the Flock case there was a taking of $3.90 acres from a tract of 112.58 acres; in the Fredericks case there was a taking of 6.28 acres from a tract of 103.80 acres; in the Blackburn case there was a taking from two tracts: (1) 7.78 acres from a tract of 96.23 acres and (2) 0.28 acre from a tract of 65 acres.

The general rule of damages in eminent domain proceedings is the difference between market value of the entire property before the taking and the market value of the property remaining after the taking. Implicit in this rule are included such damages as will be sustained by the landowner as a result of deprivation of use and such physical effects, produced by the taking, as the inconvenience of being cut off from its water supply, the cost of replacement of the use heretofore enjoyed, etc., to the end that the landowner is made whole.

The court has carefully considered the testimony of defendants Flock and Fredericks, whose properties were irrigated from the streams in question for some time prior to the takings (August 23, 1960). The takings were necessitated by the plan of the water company to construct a dam in Swimming River which would result in an average rise in the overall level to contour 35.

It appears from the testimony of defendant Flock that prior to the takings he operated an irrigating system, which cost some $3800, for growing potatoes. Also shown were the requirements of the Flock farm for such irrigation, as well as that of the Fredericks farm.

It was further contended that the takings would constitute a complete barrier to the water; further, that the takings would include lands up to contour 40, constituting a 5$ area or strip, preventing their access to the water. The same situation obtained as to the Blackburn property.

Expert testimony was elicited from Neal Munch, associated with the United States Department of Agriculture, Conservation Service, as to the necessity of installing irrigation ponds, and as to the amount of water needed for common irrigation on the Flock and Fredericks farms. He also testified as to the cost of such a holding pond on the Blackburn farm.

Further expert testimony was produced by the witness Roger Van Ness, of the Stotkoff Company, well driller, as to the cost of a well to produce water sufficient for the needs of the Flock and Fredericks farms, and the cost of such construction and the equipment necessary to operate the same.

The element of fencing was testified to be necessary because of an increased exposure to all of the property abutting upon the contemplated reservoir, in which connection the water company stated it was not its intention to construct any fencing. The cost of the contemplated fencing was as follows:

                To defendant Flock       $1,080
                To defendant Fredericks   1,552
                To defendant Blackburn      810
                

Defendants, with regard to the value of the lands taken and damage to the remainder, offered two expert real estate appraisers specializing in large tracts of rural property, in the persons of Mr. Paul R. Stryker and Mr. John D. Lazarus, both of whom were qualified. They testified at great length with particular reference to the sale of comparable properties of which they had personal knowledge and those of which they had no personal knowledge, but had acquired sufficient information of the transactions in the neighborhood to qualify them as experts on appraising the value of the lands subject to condemnation. The court indicated upon the record the comparables of plaintiff and defendants that would be considered, together with all the other evidence in the case, and considered the same in accordance with the statutory and decisional law. Essex County Park Comm. v. Brokaw, 107 N.J.L. 110, 150 A. 387 (E. & A.1930).

The court inclines to the view that the value of the land taken, State by State Highway Com'r v. Jones, 27 N.J. 257, 142 A.2d 232 (1958), and all damages to the remainder from such taking, including such damage, if any, as will result from the deprivation of use of riparian rights and such other physical effects produced by the taking, the inconvenience of being cut off from its water supply, measured by the rule of reasonable use, is the formula to be applied to the facts of this case. Meeker v. City of East Orange, 77 N.J.L. 623, 74 A. 379, 25 L.R.A.,N.S., 465 (E. & A.1909); Crane v. Borough of Essex Fells, 67 N.J.Super. 83, 169 A.2d 845 (1961).

Stated otherwise, the ultimate test is to restore the owner to his original position, and in this connection he is entitled to the full and perfect equivalent of the property taken and the damages...