Mueller v. New Jersey Highway Authority

• Decision Date: 23 February 1960
• Docket Number: No. A--370,A--370
• Citation: 158 A.2d 343,59 N.J.Super. 583
• Parties: Erwin MUELLER and Hedwig Mueller, his wife, Plaintiffs-Appellants, v. NEW JERSEY HIGHWAY AUTHORITY, a corporation of New Jersey, and Dwight R. G. Palmer, Commissioner of the State Highway Department of the State of New Jersey, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 583

59 N.J.Super. 583

158 A.2d 343

Erwin MUELLER and Hedwig Mueller, his wife, Plaintiffs-Appellants, v. NEW JERSEY HIGHWAY AUTHORITY, a corporation of New Jersey, and Dwight R. G. Palmer, Commissioner of the State

Highway Department of the State of New

Jersey, Defendants-Respondents.

No. A--370.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 23, 1959.

Decided Feb. 23, 1960.

Ralph W. Chandless, Hackensack, for plaintiffs-appellants (Chandless, Weller & Kramer, Hackensack, attorneys).

Theodore W. Geiser, Newark, for defendant-respondent New Jersey Highway Authority, a corporation of New Jersey, (Shaw, Pindar, McElroy, Connell & Foley, Newark, attorneys; John J. McLaughlin, Newark, on the brief).

William L. Boyan, Deputy Atty. Gen., for defendant-respondent Dwight R. G. Palmer, Commissioner of the State Highway Department of the State of New Jersey (David D. Furman, Atty. Gen., attorney).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

FREUND, J.A.D.

Plaintiffs Erwin Mueller and his wife, Hedwig, appeal from a judgment of dismissal entered on motion of the defendants at the close of plaintiffs' case. The action is one in lieu of prerogative writs in which plaintiffs seek either an order requiring the defendants, the New Jersey Highway Authority (hereinafter 'Parkway Authority') and the State Highway Department, to condemn in an appropriate proceeding certain property alleged by plaintiffs to have been 'taken' by the defendants, Brown v. Murphy, 136 N.J.L. 183, 185, 54 A.2d 764 (E. & A.1947), Muszynski v. New Jersey Tunpike Authority, 27 N.J.Super. 248, 251, 99 A.2d 326 (App.Div.1953), or an injunction preventing the continuous interference by defendants with what are alleged to be property rights of the plaintiffs. The theory of plaintiffs' case is that the defendants deprived them of an easement of access by erecting a concrete curbing for an exit ramp from the Garden State Parkway, thereby rendering their property, in effect, landlocked. The curbing curves around the southeasterly portion of the plaintiffs' tract, but no part of it is upon or tangent to any property of the plaintiffs at any point. For this reason, the trial judge of the Superior Court, Law Division, sitting without a jury, concluded that there was no 'taking' of plaintiffs' property for which just compensation must constitutionally be made. 1947 New Jersey Constitution, Art. I, par. 20.

Plaintiffs own a large tract of land in Block 204 of the tax map of the Borough of East Paterson. The block is subdivided into about 33 separate lots, most of which plaintiffs own. The lots immediately concerned in this case are No. 21 and No. 22, having combined dimensions of 50 feet in width by 125 feet in depth, and located near the southeasterly corner of the tract. Plaintiffs purchased their land from John Fencsak by deed dated August 30, 1947. The deed refers to the property conveyed by reference to the lot numbers on a map entitled 'Map No. 2 of Property of John Fencsak, East Paterson, Bergen County * * * January 17, 1927,' which map is on file in the Bergen County Clerk's office. The lot numbers referred to are the same as the lot numbers on the tax map.

Plaintiffs' tract is bounded on the north by Rudolph Avenue, on the west by Bank Street, on the south partly by Route 46 which is a state highway, and on the east by the privately owned lots 17--20 which, in turn, front on Ray Street. Ray Street is now a dead-end terminating at the south where it has been cut off by the Garden State Parkway exit ramp. The ramp provides an exit for southbound traffic on the Parkway and feeds such traffic into the westbound lane of Route 46.

Before Route 46 was constructed in 1936, the frontage of lots 21 and 22, then owned by Fencsak, was on a street known as Roosevelt Avenue. By deed in 1936 Fencsak conveyed to the State of New Jersey whatever 'right, title, and interest' he may have had in Roosevelt Avenue, which was bisected diagonally by Route 46. Roosevelt Avenue was vacated by the Borough of East Paterson on December 4, 1946, nine months prior to plaintiffs' acquisition of the tract. The vacation ordinance apparently was not recorded in the county offices.

The lots to the west of No. 21 and No. 22 have been leased by plaintiffs to a tenant presently in possession for a four-year term. The lots to the north of No. 21 and No. 22 have been conveyed by plaintiffs since the institution of this suit. Those lots are zoned for residential use; the highways lots for commercial use. And, as stated, the lots to the east of No. 21 and No. 22 are in other ownership. Thus it is plaintiffs' claim that unless they are afforded access to Route 46 to the south, lots 21 and 22 will be landlocked.

The curbing erected by the Parkway Authority is located to the south of the middle line of what had been Roosevelt Avenue. While not contiguous to any of the plaintiffs' property, nevertheless it is claimed that the curbing prevents automobiles traveling west on Route 46 from entering lot 21 as well as lot 22 which adjoins on the west. The exit ramp feeds traffic into Route 46 in such a manner as to make it impossible for cars traveling west on Route 46 to gain access to lots 21 and 22 without a dangerous bucking of Parkway traffic coming off the ramp.

Erwin Mueller testified at the trial that when he purchased the property in 1947, he intended to use these lots for business purposes, that he thought the lots in question fronted on Route 46, and that the denial of highway access has made it difficult for him to lease the lots. He further testified that before the curbing was constructed, no one had questioned his right to gain physical access to Route 46 by driving over what had been Roosevelt Avenue, and that he had continuously driven in and out of these lots from and to the highway ever since acquiring the property.

A previous application by plaintiffs that the ramp curb be cut to permit access was refused by the Parkway authorities--an obviously correct traffic decision. The Parkway Authority offered plaintiffs an alternative way of access through its land immediately east of plaintiffs' property, thereby providing a route to Ray Street, but the negotiations collapsed when the Parkway Authority refused plaintiffs' demand that it pave any such exit road.

Plaintiffs contend that lots 21 and 22 had an easement appurtenant for access to and egress from Route 46. They contend that this easement constitutes a property right and that the construction by the Parkway Authority of the exit ramp interferes with the easement and therefore constitutes a 'taking' of private property for public use for which the plaintiffs ought to be compensated. It is clear that plaintiffs' grievance is only against the Parkway Authority and not against anything which the State Highway Department has done in connection with Route 46, and the dismissal of the case against the State Highway Commissioner is therefore affirmed.

We are not impressed with the argument of the Parkway Authority that there has been to taking of plaintiffs' property merely because the curbing does not physically invade or appropriate land as to which plaintiffs own a fee interest. A preexisting easement of access to and from a public highway, possessed by an owner of land abutting on such highway, constitutes a right of property of which he cannot be deprived without just compensation, and it is of no consequence that he does not own in fee the roadway subject to the easement. Lindel Realty Co. v. Miller, 2 N.J.Super. 204, 212, 62 A.2d 817 (Ch.Div.1948), affirmed 4 N.J.Super 37, 66 A.2d 539 (App.Div.1949); 29 C.J.S. Eminent Domain § 105 (1941); 18 Am.Jur., Eminent Domain, §§ 158, 183--185 (1938); 39 C.J.S. Highways § 141 (1944); 25 Am.Jur., Highways, §§ 154, 318 (1940); 10 McQuillin, Municipal Corporations (3d ed. 1950), §§ 30.54, 30.56, 30.63, pp. 649, 658--59, 669 et seq. Cf. County Park Commission of Camden County v. Kimble, 24 N.J.Super. 221, 227, 93 A.2d 647 (Ch.Div.1952). And N.J.S.A. 27:12B--5 specifically authorizes the Parkway Authority to condemn easement rights of the kind alleged to exist here.

Apart from the conclusion that plaintiffs would be entitled to relief if they actually possessed the easement of access they claim, and if it was substantially interfered with, the record on review does not permit any other final determination of their rights. The precise factual situation involved here is obscure in so many respects that any legal conclusions based thereupon would be precipitate. Not only are the facts and exhibits unclear, but the legal principles which we conceive must necessarily govern the merits of the case have not been adequately briefed and argued. Fairness to the parties, as well as the necessity for a decision in this matter that will accord with substantial justice and the law properly applicable, dictates that they be afforded an opportunity to argue the matters hereinafter discussed after a retrial of the case to establish an adequate factual record for that purpose.

There is first the question as to whether the rights, which plaintiffs presently assert have been invaded, had not been transferred when Fencsak conveyed to the State by a full covenant warranty deed in 1936 his 'right, title and interest' to Roosevelt Avenue over which the right of access to Route 46 is now claimed and certain other parcels of land described therein. Fencsak's deed to the State additionally conveyed slope rights on his adjoining lands. When Fencsak conveyed the lots in question to plaintiffs 11 years later, there was expressly excepted 'that portion of said above described premises heretofore conveyed to the State of New Jersey for state highway purposes.' The parties to this case have not explored, except by way of implication, the significance of these transactions to the present controversy.

In the case before us, we are not in a position...