New Jersey Turnpike Authority v. Bayonne Barrel & Drum Co.

• Decision Date: 27 April 1970
• Citation: 266 A.2d 164,110 N.J.Super. 506
• Parties: NEW JERSEY TURNPIKE AUTHORITY, Plaintiff, v. BAYONNE BARREL & DRUM CO., a New Jersey Corporation, Frank Langella, City of Newark, a municipal corporation of the State of New Jersey, National State Bank of Newark, a New Jersey Corporation, Peter Holding Company, a New Jersey Corporation, Tillie Holding Company, a New Jersey Corporation, Economy Leasing Company, a Pennsylvania Corporation, State of New Jersey, United States of America, Defendants.
• Court: New Jersey Superior Court

Page 506

110 N.J.Super. 506

266 A.2d 164

NEW JERSEY TURNPIKE AUTHORITY, Plaintiff, v. BAYONNE BARREL & DRUM CO., a New Jersey Corporation, Frank Langella, City of Newark, a municipal corporation of the State of New Jersey, National State Bank of Newark, a New Jersey Corporation, Peter Holding Company, a New Jersey Corporation, Tillie Holding Company, a New Jersey Corporation, Economy Leasing Company, a Pennsylvania Corporation, State of New Jersey, United States of America Defendants.

Superior Court of New Jersey Law Division.

April 27, 1970.

Thomas C. Mitchell, East Brunswick, for plaintiff (Grover C. Richman, Jr., Camden, attorney; Thomas C. Mitchell, East Brunswick, on the brief).

Joseph R. McMahon, Newark, for defendant Bayonne Barrel & Drum Co. (Lum, Biunno & Tompkins, Newark, attorneys; Joseph R. McMahon, Newark, on the brief).

OWENS, J.S.C.

The condemnee, Bayonne Barrel & Drum Co., has applied to the court for an award of legal fees and expert witness fees as an element of damages. This motion was made after a struck jury had returned a verdict of $2,767,000 as damages in the eminent domain proceeding. Prior to that the condemnation commissioners had made an award of $2,873,904 as representing just compensation for the taking of the defendant's property.

An extended statement of facts is not necessary for the disposition of this motion. It is sufficient to state that plaintiff Turnpike Authority originally deposited the sum of $397,036 as the amount it believed would constitute just compensation.

The condemnee justifies its request on the theory that pursuant to the Federal Constitution and the Constitution of the State of New Jersey the landowner must be made 'whole' as a matter of equitable principles. These expenses, claims the condemnee, are necessary and unavoidable costs in the defense of a condemnation proceeding and thus are not 'counsel fees' in the traditional sense. The argument developed asserts the manifest injustices placed upon a condemnee when a sovereign exercises the right to take land. The condemnor points to R.R. 4:55--7 (now R. 4:42--9) and states that counsel fees may be awarded only as permitted by the rule. It also cites several cases for the proposition that each litigant should bear his own counsel fees. Finally, the case of Housing Authority of Long Branch v. Valentino, 47 N.J. 265, 268, 220 A.2d 196 (1966), is cited as the present authority on the issue.

The Valentino case would appear to preclude this court from granting defendant's motion. The facts in that case, however, seem to be of the ordinary garden variety. In the case at bar the facts and circumstances dictate a further exploration.

It is axiomatic that in any condemnation proceeding the property owner is entitled to just compensation for his land. The Federal Constitution and the New Jersey Constitution (1947), Art. I, par. 20, provide that 'Private property shall not be taken for public use without just compensation.' What, then, does the term 'just compensation' include? Does it include the expense of obtaining expert witnesses? Does it include the expense of representation by counsel? The court is aware that as a general proposition of law, costs are not recoverable unless allowed by statute. State v. Pellini, 75 N.J.Super. 161, 169, 182 A.2d 566 (App.Div.1962); Metler v. Easton and Amboy R.R. Co., 37 N.J.L. 222 (Sup.Ct. 1874). Metler further states that if costs are given by statute their allowance in any case will depend upon the terms of the statute.

Presently there are two rules which allow costs in condemnation proceedings. One is R. 4:73--5 (formerly R.R. 4:92--5):

On the motion of any party, including the commissioners, The court may, in its discretion, on proper showing, allow such fees, expenses and costs of the commissioners as it deems adequate, to be paid by plaintiff. (Emphasis added)

The other rule is R. 4:73--8 (formerly R.R. 4:29--8):

Costs of the appeal shall be taxed against the plaintiff-condemnor in all cases except those in which the appeal is brought by the defendant-condemnee and the judgment is for the same or a lesser sum than that awarded by the commissioners.

To iterate, R. 4:73--5 refers to costs of the commissioners, R. 4:73--8 to costs of the appeal. Does either or both of these rules include counsel fees and expert witness fees?

Generally, the courts in most jurisdictions throughout the United States have construed condemnation statutes which provide for 'costs' and 'expenses,' without specifically mentioning legal fees or expert witness fees, as not intending to provide for the payment of such fees, declaring that they are not part of the costs or just compensation. See 26 A.L.R.2d 1295. Authority supporting this view is found in this jurisdiction in the case of In re Canda Realty Co., 17 N.J.Misc. 346, 9 A.2d 305 (Sup.Ct.1939). The court there interpreted R.S. 20:1--14, which was repealed July 1953. However, its meaning and language became instilled in R.R. 4:92--5 (now R. 4:73--5). See State, by State Highway Com'r v. Dilley, 48 N.J. 383, 386, 226 A.2d 1 (1967).

The Canda Realty court held that the statute allowing costs to the commissioners could not be construed to include an allowance of counsel fees for the landowners. The court specifically stated:

R.S. 20:1--14 likewise, in my opinion, is inapplicable. It provides that 'the justice of the Supreme Court * * * shall, upon application of either party on reasonable notice, tax and allow such costs, fees and expenses of the commissioners, clerks and other persons performing any of the duties prescribed in section 20:1--1 to 20:1--13 of this title as he shall think proper, which shall be paid by the petitioner.' None of the charges for which the owner seeks an allowance is on behalf of a commissioner, clerk or other person performing any duty prescribed in those sections of the statute which precede 20:1--14.

This court feels that Canda Realty, is not Stare decisis. The statute construed in that case, R.S. 20:1--14, was, as is the present R. 4:73--5, discretionary with the court. Accordingly, even if the holding in that case was proper for the particular facts presented therein, it cannot be said that such a holding would preclude a contrary interpretation of judicial discretion by another court under a different set of facts. This court is therefore capable of exercising its own judicial discretion if it finds a distinction.

The question is, should this court divert from the traditional approach of not allowing legal and expert fees in a condemnation case when the statute provides only for costs?

Ordinarily when a point of law has been settled by decision, it forms precedent from which there should be no departure. This is based on the theory that security and certainty require that accepted and established legal principles, under which rights may accrue, be recognized and followed in order to sustain our present legal system. Precedent alone, however, cannot be permitted to compound injustice. With the passing of time a precedent that was just and equitable in the past may become obsolete and inequitable. This was expressed by our Supreme Court in State v. Pennsylvania R.R. Co., 9 N.J. 194, 87 A.2d 709 (1952):

The principle espoused by these cases has stood for over 100 years. Mere antiquity, however, will not save it from the onslaughts being made if it is otherwise barren of reason or logic, equity or justice. Time alone will not suffice to cause its re-embracement. On the other hand, a firmly fixed and well settled rule should not be changed unless it is proved erroneous or, under present-day conditions, no longer sustains the basic principles of law and justice which originally evoked it. (at 200, 87 A.2d at 712)

Under present-day conditions the traditional approach of requiring a condemnee, in all cases, to bear the expense of legal fees and expert witnesses is inequitable and an unfair burden placed upon the landowner. We are mindful that the condemnee is in a far different position than the average defendant. If the average defendant is in court, it is usually because he has committed an act of commission or omission. A condemnee becomes a litigant merely because he owns land that the sovereign wishes to acquire. The sovereign must pay just compensation for such land. Does a condemnee receive just compensation or is he 'made whole' if he must expend large sums of money to insure that he gets a fair price for his land? We think not.

The case of In re Commissioners of Palisades Interstate Park, 83 Misc. 186, 144 N.Y.S. 782 (Sup.Ct. 1913), took the folliowing approach in construing a statute similar to R.S. 20:1--14 (now carried over into R. 4:73--5). That statute read The said court shall also tax and allow such costs, fees and expenses to the commissioners of...