State by Bontempo v. Lanza

• Decision Date: 18 May 1962
• Docket Number: A--86,Nos. A--77,s. A--77
• Citation: 181 A.2d 390,74 N.J.Super. 362
• Parties: STATE of New Jersey, by Salvatore A. BONTEMPO, Commissioner of Conservation and Economic Development, Plaintiff-Respondent, v. Silvio A. LANZA et al., Defendants-Appellants. Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 362

74 N.J.Super. 362

181 A.2d 390

STATE of New Jersey, by Salvatore A. BONTEMPO, Commissioner of Conservation and Economic Development Plaintiff-Respondent, v. Silvio A. LANZA et al., Defendants-Appellants.

Nos. A--77, A--86.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 6, 1961 and March 12, 1962.

Decided May 18, 1962.

Jacob Green, Newark, argued the cause for appellants (Donald M. Legow, Newark, on the brief).

Philip Lindeman, II, Newark, argued the cause for respondent (Arthur J. Sills, Atty. Gen., of New Jersey, attorney; Bernard Hellring, special counsel; Philip Lindeman, II, Norman Bruck, Newark, and Philip L. Chapman, Palisade, on the brief).

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

This is a condemnation action commenced July 10, 1957 by the plaintiff State of New Jersey to acquire lands of defendant Silvio A. Lanza situated in the area commonly known as Round Valley, for purposes of constructing a water supply reservoir, pursuant to L.1956, c. 60, N.J.S.A. 58:20--1 et seq. Among other defenses interposed by that defendant (hereinafter referred to as Silvio) was the contention that the enabling act was unconstitutional. This question was determined adversely to him in the Supreme Court on June 27, 1958. State v. Lanza, 27 N.J. 516, 143 A.2d 571 (1958). The United States Supreme Court dismissed an appeal from that ruling for lack of a substantial federal question. Lanza v. State, 358 U.S. 333, 79 S.Ct. 351, 3 L.Ed.2d 350 (1959).

Final judgment was entered in favor of the State in the Law Division November 27, 1957. An award of $38,425 for Silvio's interest was made by condemnation commissioners on February 27, 1958. An appeal from this award by Silvio was tried in the Law Division, consuming 22 trial days over the period from October 30, 1958 to July 6, 1959. The result was a 31-page opinion by the trial judge, wherein, after an exhaustive analysis of the evidence and opposing arguments, the sum of $57,623.93 was arrived at as 'just compensation' for all of the property involved. An appropriate judgment was filed October 2, 1959. Of the two separate appeals now before us for disposition, one is from the said judgment.

The second appeal before us is by Vito Lanza (hereinafter referred to as Vito), brother of Silvio, from certain orders entered in the Law Division, before and at the trial of the appeal, denying his application for intervention in the case as a party in interest. However, we granted Vito leave provisionally to participate in the appeal on the meritorious questions while prosecuting the intervention appeal, and he has been heard with respect thereto.

I

We deal first with the intervention appeal. The circumstances surrounding Vito's acquisition of his interest in the property and attending the original denial of his claim to intervention by order date August 1, 1958 are detailed in State v. Lanza, 60 N.J.Super. 130, 158 A.2d 351 (App.Div.1959), and will not be repeated here. (The case cited was a dismissal of an earlier appeal by the Lanzas from orders of the Law Division, including the denial of intervention, because of inadequate prosecution of the appeal.) Suffice it here to say that Silvio, by deed dated June 24, 1958 and recorded June 30, 1958, conveyed an undivided one-tenth interest in the lands in question to Vito. In the earlier appeal Vito told the court the conveyance was in consideration of past advances to Silvio. No proof justifying a conclusion that this was not a valid instrument legally transferring the purported interest to Vito has ever been submitted to the court. We consequently treat Vito as owner of an undivided one-tenth interest in the real estate for purposes of the legal issue presented.

The motion for intervention was renewed before the trial judge at the inception of the trial as well as later in its course but was denied each time, finally by order dated September 29, 1959. However, Vito, who is a New York lawyer, attended all trial sessions and sat and consulted with trial counsel for Silvio continuously during the course of the trial. Moreover, he has advised Silvio and consulted with previous counsel for Silvio during the whole course of the litigation. See State v. Lanza, supra 60 N.J.Super., at pp. 132, 133, 158 A.2d 351; State v. Lanza, 60 N.J.Super. 139, 158 A.2d 355 (App.Div.1960). A petition for certification of our dismissal of the previous appeal was dismissed by the Supreme Court, but 'without prejudice to the renewal of the grounds sought here to be raised on appeal from final judgment.'

The State suggests that since Vito has had one opportunity to appeal the denial of intervention which he wasted by failure to prosecute the appeal, thereby incurring the dismissal mentioned above, he should not be accorded another opportunity. However, the language of the Supreme Court order dismissing the petition for certification of the dismissal suggests to us the advisability of disposing of the question so that this already excessively protracted litigation may be brought to a final termination.

We have concluded that Vito Lanza was entitled to intervention but that the denial of his application has not visited upon him and his property interests such prejudice as would justify nullification of the hearing and determination of the appeal in the Law Division respecting just compensation for the taking and incidental related issues.

The practice rules here applicable read as follows:

'4:37--1. Intervention of Right

Upon timely application anyone shall be permitted to intervene in an action: (a) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof; * * *.'

'4:37--3. Permissive Intervention

Upon timely application anyone may be permitted to intervene in an action when an applicant's claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.'

'4:37--4. Procedure

A person desiring to intervene shall serve a motion to intervene upon all parties (affected thereby). The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.' (The bracketed portion was deleted by amendment of September 11, 1961.)

Of interest are also the following provisions of R.R. 4:92, Condemnation. R.R. 4:92--2 provides, in part:

'The record owner, the occupant, if any there be, such other persons appearing of record to have any interest in the property and such persons claiming an interest therein as are known to the plaintiff shall be made parties.'

Under R.R. 4:92--6(c) an appeal from the report of the commissioners need be served 'only * * * on parties or persons in possession and parties who have an interest in (the property) involved in the appeal and who shall have appeared personally or by attorney before the commissioners.'

There is no specific practice rule governing intervention in a condemnation case. It is therefore to be assumed that R.R. 4:37 is intended to be applicable thereto. There is no New Jersey case directly in point. This condition of our practice may be contrasted with the comparable Federal Rules. Although our R.R. 4:37--1(a), (b), 4:37--3 and 4:37--4 are basically derived from Federal Civil Rule 24, 28 U.S.C.A., yet the Federal Rules were from their adoption in 1938 expressly declared not applicable to condemnation proceedings except in relation to judicial appellate review. Rule 81(a)(7); see 7 Moore's Federal Practice (1955), p. 4417. There was no federal practice rule for condemnation until the adoption of Rule 71A, which became effective August 1, 1951. This makes the general rules of practice applicable to proceedings in condemnation except as specifically provided in Rule 71A. While that rule contains no express reference to intervention, the following provision of '(c) Complaint' thereof would appear in effect to justify allowance of intervention were a situation like that of Vito Lanza's presented to a federal court: 'Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property, the plaintiff shall add as defendants all persons having or claiming an interest in that property whose names' are ascertainable by search of the records or are otherwise known.

In United States v. Certain Parcels of Land, etc., 102 F.Supp. 691 (W.D.Pa.1952), involving condemnation as of prior to the adoption of Rule 71A, it was held that notwithstanding an application for intervention in condemnation was a matter of discretion under the then existing practice, yet one succeeding in interest to the realty after the declaration of taking, and asserting a claim for additional compensation and damages, should be allowed to intervene on principles of 'justice and thorough administration of the law,' since the proceeding from the declaration of taking through to distribution 'is one continuous integrated process of litigation' (at p. 693). Cf. United States v. 1,830.62 A. of Land in Botetourt County, 51 F.Supp. 158 (W.D.Va.1943); Oliver v. United States, 156 F.2d 281 (8 Cir.1946).

Vito argues an absolute right to intervention under either (a) or (b) of R.R. 4:37--1, or, in the alternative, a discretionary right under R.R. 4:37--3. We confine our consideration and holding here to (b) of ...