New Jersey Highway Authority v. Johnson
| Decision Date | 26 April 1955 |
| Docket Number | No. A--725,A--725 |
| Citation | 113 A.2d 831,35 N.J.Super. 203 |
| Parties | NEW JERSEY HIGHWAY AUTHORITY, Plaintiff-Respondent, v. Walter JOHNSON, Jr., and Barbara Johnson, Defendants-Appellants. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Samuel Allcorn, Jr., Montclair, argued the cause for appellants (Goodell & Allcorn, Montclair, attorneys).
Morris M. Schnitzer, Newark, argued the cause for respondent.
Before Judges CLAPP, JAYNE and FRANCIS.
The opinion of the court was delivered by
JAYNE, J.A.D.
The plaintiff, a body corporate and politic of this State, determined that the acquisition of certain lands of the defendants situate in the Town of Bloomfield, in the County of Essex, were reasonably necessary for the construction of the Garden State Parkway. In the pursuit of its authorized governmental functions it was obliged in the absence of mutual agreement to acquire the defendants' lands by the exercise of its power of eminent domain and it instituted the present action to effectuate that purpose.
The condemnation commissioners awarded the defendants the sum of $77,000 as compensation, which the plaintiff deemed to be exorbitant and from which determination the plaintiff appealed. On appeal the trial jury fixed the sum of $57,000 as just compensation to the defendants for their deprivation. The latter award has aggrieved the defendants, and they present to us five argumentative reasons why the judgment should be reversed and a new trial ordered.
Counsel for the appellants propose that the trial judge committed prejudicial error in embodying in his instructions to the jury the following request to charge submitted to him on behalf of the plaintiff.
To ascertain definitely the land sought to be procured by the plaintiff we initially consult the descriptive information necessarily supplied by the complaint. There we discover that the property is identified as parcels 4A, 4B, and 4C as indicated on an attached plan entitled 'New Jersey Highway Authority, Garden State Parkway, Section 2, From Main St., Paterson, Passaic County, to Belleville Ave., Bloomfield, Essex County, Parcels 4A, 4B, & 4C, Town of Bloomfield, Essex County, Scales as indicated, May 1953.'
In further particularization parcel 4A is stated to represent lots Nos. 90 to 106, inclusive, as so designated on a map entitled 'Map of Povershon Hills, Property of Walter Johnson, Situated in the Town of Bloomfield, N.J.,' containing 126,267 square feet; parcel 4B, lots known on the Povershon Hills map as Nos. 55 to 78 inclusive (excepting No. 63), embracing 157,066 square feet; and parcel 4C, lots Nos. 79 to 88 inclusive likewise exhibited on the same map, containing 58,666 square feet; together with all right, title and interest that Walter Johnson, Jr., the defendant, may have in and to Newport Drive, Byrd Avenue, ,Pilch Street, and the former Morris Canal adjoining the premises so described.
It is significant to observe that informationally the same description numerically indicating the lots and specifically designating the streets as shown on the Povershon map was attached as 'Schedule A' to the pretrial order to which counsel for the respective parties subscribed. Certainly the court, the jury and counsel were definitely aware of the lands subjected to condemnation.
The jurors availed themselves of the opportunity personally to view the property and visualize its natural characteristics, the better to enable them to understand the testimony. Everyone understood that as delineated on both maps there were in all 52 lots of an aggregate are of 7.85 acres, and that of the total acreage of 10.16 an area in all of 2.31 acres was within the boundaries of the platted streets denominated as Byrd Avenue and Newport Drive.
With equal assurance derived from our examination of the testimony adduced at the trial, it can be stated that all concerned understood the lineations of the entire tract, the dimensions of the delineated lots, their frontage on the platted streets, the incomplete and partial improvement of the designated streets and the general nature and extent of the improvements already installed therein. Every witness appears to have shared the belief that the most valuable use to which the lands could in the immediate present or in reasonable anticipation in the future be adapted was for the erection thereon of one-family residences.
It is noticeable also that the trial judge instructed the jurors that they were privileged to take into consideration the improvements on the land as components of its value on the stated date.
And so, in the respects thus far discussed we fail to detect any cause for confusion in the minds of the jury prejudicial to the appellants.
But we must recognize the core of the appellants' first point, which is that the portion of the court's charge here impugned in effect directed the jury to determine the value of only 7.85 acres instead of a tract of land of 10.16 acres, thus erroneously depriving the defendants of the opportunity to have the jury consider and determine the amount of compensation, if any, to which the defendant owner was entitled for his right, title and interest in the 2.31 acres, which areas are portrayed as streets on the Highway Authority and Johnson maps.
One wonders whether a visionary conception of 52 relatively spacious lots, all having a street frontage, would not conduce to a more elevated estimate of value than a realistic perception of a tract of vacant and unimproved acreage. It would seem that the maps placed an attractive dress on the naked land.
It is observed that the plaintiff additionally sought the acquisition of all the right, title, and interest, 'a fee simple absolute,' of the defendant Walter Johnson, Jr., in the acres comprising the 2.31 acres designated on the maps as Newport Drive and Byrd Avenue.
True, it has been heretofore held that where the State took land for highway purposes, it acquired an easement for public travel only. New Jersey Zinc & Iron Co. v. Morris Canal & Banking Co., 44 N.J.Eq. 398, 404, 15 A. 227, 1 L.R.A. 133 (Ch.1888), affirmed, 47 N.J.Eq. 598, 22 A. 1076 (E. & A.1890); Frelinghuysen v. State Highway Comm., 107 N.J.L. 218, 152 A. 79 (Sup.Ct.1930), affirmed, 108 N.J.L. 403, 158 A. 465 (E. & A.1931); Wolf v. State Highway Comm. of N.J., 110 N.J.L. 237, 164 A. 470 (E. & A.1933); Lindel Realty Co. v. Miller, 2 N.J.Super. 204, 211, 62 A.2d 817 (Ch.1948), affirmed, 4 N.J.Super. 37, 66 A.2d 539 (App.Div.1949); Valentine v. Lamont, 13 N.J. 569, 577, 100 A.2d 668 (1953), certiorari denied, 347 U.S. 966, 74 S.Ct. 776, 98 L.Ed. 1108 (1954).
Accordingly the land of the abutting owner was merely encumbered by the easement of public travel and the essential incidents of such a use, but the fee to the land to the middle of the road remained in the abutting owner. Saco v. Hall, 1 N.J. 377, 382, 63 A.2d 887 (1949); Faulks v. Borough of Allenhurst, 115 N.J.L. 456, 180 A. 877 (E. & A.1935). See, also, Starego v. Soboloski, 21 N.J.Super. 389, 91 A.2d 263 (App.Div.1952), affirmed, 11 N.J. 29, 93 A.2d 169 (1952), certiorari denied, 345 U.S. 925, 73 S.Ct. 784, 97 L.Ed. 1356 (1952); Stanley Development Co. v. Millburn Tp., 26 N.J.Super. 328, 97 A.2d 743 (App.Div.1953); Wolff v. Veterans of Foreign Wars, Post 4715, 5 N.J. 143, 151, 74 A.2d 253 (1950).
Here it is conceded that the plaintiff possessed the power to acquire the fee absolute of the 2.31 acres and also that such was the object of the present condemnation proceeding. Art. IV, Sec. VI, par. 3, Constitution (1947); N.J.S.A. 27:12B--5(l); vide, Valentine v. Lamont, supra. 'Such taking shall be with just compensation,' says the Constitution.
In this essential particular it becomes consequential to reflect upon the probable import ascribed by the jury to the court's instruction. Noticeably requests Nos. 4 and 5 were charged in immediate sequence. In number 4 we observe the following unobjectionable excerpt:
'* * * the jury may not consider what the value would be if the property were laid out in lots, estimating the costs of putting upon it the improvements of the municipality, and calculating what the value would be if such improvements were actually made.'
Then comes:
'The property being condemned in these proceedings comprises 7.86 acres and this has been agreed upon between the parties.'
It is rational to believe that the associated ideas generated by the charge would cause the jurors to understand that they were not to evaluate the property as consisting of lots abutting public streets but only as a tract of 7.86 acres remaining from a former tract of 10.16 acres, from which the area designated as streets had been previously dedicated to the public by the owner by reason of the filing of the map.
Moreover, while the defendants acknowledged that the total area of the platted streets was 2.31 acres and the remaining area comprised a total of 7.85 acres, we are unable to discern in the record any agreement by the defendants that the only property being condemned was 7.86 acres. Incidently, we may state that no significance is attributable to the circumstance that the judge mistakenly mentioned 7.86 instead of 7.85 acres. That occurrence is minuscule.
And then the fact is not to be ignored that the requests which describe the property to be taken as acreage were submitted at the trial on behalf of the Authority and that counsel on this appeal prefers to assert that: 'In the court below, the sole issue which the parties tried was the value of 52 building lots fronting two mapped streets, partially improved by the owner.'
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