New Jersey Turnpike Authority v. Washington Tp., Mercer County, A--153

• Decision Date: 21 June 1954
• Docket Number: No. A--153,A--153
• Parties: NEW JERSEY TURNPIKE AUTHORITY v. WASHINGTON TP., MERCER COUNTY et al.
• Court: New Jersey Supreme Court

Page 38

16 N.J. 38

106 A.2d 4

NEW JERSEY TURNPIKE AUTHORITY v. WASHINGTON TP., MERCER COUNTY et al.

No. A--153.

Supreme Court of New Jersey.

Argued May 31, 1954.

Decided June 21, 1954.

Harvey T. Satterthwaite, Trenton, argued the cause for the appellants (Satterthwaite & Satterthwaite, Trenton, attorneys)

Ward J. Herbert, Newark, argued the cause for the respondant (Donald S. Bowie, Jr., Newark, on the brief).

The opinion of the court was delivered by

VANDERBILT, C.J.

By consent five appeals have been consolidated for argument.

Washington Township assessed to the New Jersey Turnpike Authority for the year 1952 ten tracts of land totalling 511 acres owned by it located outside its 300-foot right of way. The present appeals involve three of these tracts totalling approximately 202 acres. The 300-foot right of way of the Turnpike has never been taxed and there are no interchanges, service or maintenance areas or other installations of the Turnpike Authority located in Washington Township outside of the right of way.

East Windsor Township assessed to the Turnpike Authority for the year 1952 three tracts of land owned by it located outside its 300-foot right of way. These tracts total approximately 211 acres. The present appeals involve two of these tracts totalling 210 acres. East Windsor Township has granted tax exemption, in addition to the 300-foot right of way, to all the land outside the right of way acquired by the Turnpike Authority for its Highstown interchange and an additional exemption of 40 acres for land which the assessor found to be in use as a source of fill dirt and as a dump by the Turnpike Authority.

The New Jersey Turnpike Authority petitioned the Mercer County Tax Board for the cancellation of the assessments on all its properties in Washington and East Windsor Townships located outside the Turnpike right of way. The Mercer County Tax Board dismissed the petitions and affirmed the assessments. On the Turnpike Authority's petition the Division of Tax Appeals reversed the Mercer County Tax Board and ordered the assessments cancelled under the authority of R.S. 27:23--12, N.J.S.A. The two townships appealed to the Appellate Division of the Superior Court and before hearing thereon we certified the appeals on our own motion.

Before their acquisition by the Turnpike Authority the lands involved in these appeals were used for farming. Since then they have not been used and despite some vague testimony to the contrary it is now conceded that there is no likelihood of their being used in the future for turnpike purposes. On the contrary, it is the announced intention of the Turnpike Authority to dispose of them as surplus property as soon as it conveniently can. In extenuation of its delay in disposing of these properties the Authority states that they are mere parts of former farms that have been cut in two by the construction of the Turnpike and that some of them are without access to a public road and that the number of prospective buyers is therefore distinctly limited. On the other hand, the appellant townships point out that although some of the individual tracts lack access to a public road, all of them by reason of their common ownership by the Turnpike Authority do have access to public roads, that their value is deteriorating for lack of cultivation and that the Turnpike Authority has not made any real effort to sell them.

The single issue before us is whether or not the Turnpike Authority has an unlimited right to tax exemption, including even such property as is not used as part of the turnpike project.

1. At the outset the appellant townships question the right of the Turnpike Authority to acquire more land than it needed for turnpike purposes. They say that the power of Turnpike Authority to condemn land is limited to the statutory objectives set forth in its enabling act, i.e., the 'construction, operation and maintenance of turnpike projects,' N.J.S.A. 27:23--3, and the acquisition of such land as 'it may determine is reasonably necessary' therefor, N.J.S.A. 27:23--5(j), and that there is no statutory authority for the acquisition of lands not needed for turnpike purposes merely because, as here, such additional lands are owned by the same individuals who own land required for turnpike purposes. The enabling act of the Turnpike Authority does not authorize excess condemnation. While condemnation either of the fee or a lesser interest is limited to those lands reasonably necessary for the achievement of the statutory purpose, it is well recognized in practice that in obtaining property for any public project acquisition by purchase may in many instances be more in the public interest than acquisition by condemnation, for it may be more economical to buy an entire tract than to condemn part of it and to pay compensation for damages to the remainder. Accordingly, in acquisitions by purchase more latitude necessarily is allowed as to the quantity of land bought than would be permissible when proceeding by condemnation. Taking all of an owner's land by purchase may be more in the public interest (as well as in the owner's interest) than acquiring a part by condemnation. Apparently such was the case in the present instances, and in the absence of bad faith, which is not charged here, the practice should be encouraged. Condemnation is a rugged remedy so far as the citizen is concerned and should not be resorted to needlessly, even though the power is granted, unless required in the public interest.

But the right to acquire by purchase a larger amount of land than would have been permitted by condemnation does not imply a power to retain any land thus acquired that is not intended for a public purpose and the burden of making out a case for utilization of such land rests on the Turnpike Authority. The permanent taking of private property can be justified only if in the public interest and for the purposes specified in the enabling act. Were the rule otherwise, in these days of expanding governmental activities the amount of property remaining in private hands would be uselessly diminished, adversely affecting the taxing power of the State, which necessarily depends in large measure on the amount of private property available for taxation.

2. The same considerations that control with respect to the amount of land acquired by the Turnpike Authority apply with respect to the related problem of exemption from taxation. While the Turnpike Authority Act may seem at first blush to exempt from taxation the property here under consideration as 'property acquired or used by the Authority under the provisions of this act,' N.J.S.A. 27:23--12, and while a literal application of the language of the statute has been held in Port of New York Authority v. Union City, 20 A.2d 653, 19 N.J.Misc. 421, at page 422 (Sup.Ct.1941), to justify exemption from taxation of property 'not so used because not needed', the quoted language of the statute is not to be read alone, but it must be construed in the light of the provisions of the State Constitution and the law of this State relating to taxation. When so read it inevitably leads to a different conclusion and requires the overruling of the...