State by Commissioner of Transp. v. Birch

• Decision Date: 22 July 1971
• Citation: State by Commissioner of Transp. v. Birch, 280 A.2d 210, 115 N.J.Super. 457 (N.J. Super. App. Div. 1971)
• Parties: STATE of New Jersey, BY the COMMISSIONER OF TRANSPORTATION, Plaintiff-Respondent, v. Hazel R. BIRCH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 457

115 N.J.Super. 457

280 A.2d 210

STATE of New Jersey, BY the COMMISSIONER OF TRANSPORTATION Plaintiff-Respondent, v. Hazel R. BIRCH, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued June 7, 1971.

Decided July 22, 1971.

Theodore W. Geiser, Newark, for appellant (Hughes, McElroy, Connell, Foley & Geiser, Newark, attorneys).

Richard L. Rudin, Deputy Atty. Gen., for respondent (George F. Kugler, Jr., Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel; Richard L. Rudin, Newark, on the brief).

Before Judges SULLIVAN, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

In this condemnation case defendant Hazel R. Birch appeals from a verdict in the sum of $22,000 for a portion of her land taken by the State in connection with the construction of the Route 35 freeway (the freeway) and damage to the remainder.

Mrs. Birch was the owner of a tract of land which lay athwart the proposed right-of-way of the freeway. The actual taking involved approximately three acres. However, the effect of the taking was to cut her property in two, leaving approximately 4 acres to the east of the right-of-way and 15 acres to the west. Her home and outbuildings were located on the westerly 15 acres, and prior to the taking access thereto was via Bentz Road, a sand and gravel road maintained by the Township of Wall, which ran in an easterly direction to New Bedford Road. Bentz Road comprised the easterly end of a dedicated street which extended through various properties from the New Bedford Road west to the Bailey's Corner Road, but the part to the west beyond defendant's home was no more than a 'paper' street and appears never to have been opened or worked by either the township or the adjoining owners. The distance from defendant's house to the Bailey's Corner Road over the route of the paper street was approximately 1,700 feet, of which 960 feet was through the property of others. The route was impassible for any sort of vehicle at the time of the taking.

The case produced the usual disagreement between the admittedly qualified experts as to the damage sustained by defendant. Her witness, Lazarus, was of the opinion that the land actually taken was worth $2,000 per acre and that the damage to the remainder was $35,000 based upon his value of the westerly 15 acres before the taking of $41,000 and his value after of $6,000. Gall, the State's expert, estimated the value of the land taken to be $7,640 and the damage to the remainder to be $6,860, a total of $14,500. As noted, the jury awarded $22,000. ¹

The wide divergence between the opinions of the experts was occasioned by their inability to agree upon the cost of curing the resultant landlocked condition of defendant's westerly 15 acres. The State's expert, while not disputing its landlocked character, averred that this could be relieved by the construction of a 20-foot wide gravel road leading to the Bailey's Corner Road and that such a road could be built for $6,860. He appears to have assumed that it would be maintained by the township. Defendant countered that the construction of such a road would be subject to a number of contingencies, including, in addition to the cost of construction, whether she would have the right to construct such a road, whether her right of access to Bailey's Corner Road over the paper street would survive a vacation by the township, and whether the township would maintain it (as it had been maintaining the easterly end of Bentz Road for some 20 years). Ancillary to resolution of the cited questions was whether the land subdivision ordinance of the township governed the size and type of the road proposed to be constructed, and, if not, whether the township could require defendant, as a prerequisite to its taking over and assuming the maintenance of the new road, to comply with the street standards set forth in the subdivision ordinance. There was testimony that at the time the original taking was determined upon, the State had contemplated building the access road itself, but upon being confronted with a demand by the township authorities that it be constructed in conformity with the street standards set out in the subdivision ordinance it elected not to do so but to leave the issue of the building of the road to the owner.

The appeal presents a single, key issue: whether it was prejudicial error to instruct the jury, both during the trial and in the charge, that the land subdivision ordinance was not applicable to the case and played no part therein, and that Mrs. Birch did not have to comply with the ordinance in building the access road. In the charge the jury was instructed, in substance if not expressly, that if defendant's expert based 'his after value upon the expense to which Mrs. Birch would be put to comply with the land subdivision ordinance,' there was no basis for that portion of his testimony. Defendant contends that this had the effect of emasculating the testimony of her expert, and led to the allegedly inadequate verdict returned by the jury.

From our consideration of the proofs in the light of the issues involved, we are inclined to agree that the challenged instruction was error, and that the interests of justice call for a new trial.

Defendant was entitled to just compensation. N.J.Const. (1947), Art. I, par. 1. In general, had the whole of her lands been taken, her damages would have amounted to the fair market value of the property as of the date of the taking, determined by what would be agreeable between a willing seller and a willing buyer, neither being under any compulsion. State v. Speare, 86 N.J.Super. 565, 572, 207 A.2d 552 (App.Div.1965), certif. den. 45 N.J. 589, 214 A.2d 28 (1965). Where, as here, there was only a partial taking, the measure of damages was the difference between the fair market value, as above defined, of the whole property before the taking and the fair market value of the remainder after the taking. Port of N.Y. Authority v. Howell, 59 N.J.Super. 343, 348, 157 A.2d 731 (Law Div.1960), aff'd 68 N.J.Super. 559, 173 A.2d 310 (App.Div.1961), certif. den. 36 N.J. 144, 174 A.2d 927 (1961). The proximate effect of the taking was also to be taken into consideration in ascertaining the value of the remaining land. Ridgewood v. Sreel Investment Corp., 28 N.J. 121, 145 A.2d 306 (1958); State v. Speare, Supra, 86 N.J.Super. at 573, 207 A.2d 552. Since the denial of access to the freeway resulted in the greater part of defendant's property being landlocked, the cost of ameliorating or curing that condition was an important factor to be considered in arriving at its fair market value. Any significant restriction on the jury's consideration of the proofs on that issue, if found to be erroneous, would go to the very heart of the matter it was impanelled to decide.

The State urges that since the court was dealing with a dedicated street, and the two remaining parts of defendant's land had been severed by court order (condemnation), the court properly charged that the subdivision ordinance did not apply and that Mrs. Birch did not have to comply with it in building the proposed access road. It further argues that as a lot owner adjoining the dedicated way, she would always retain a right of access over it to Bailey's Corner Road by reason of the dedication. Wholly aside from the possibly nonbinding effect of the court's pronouncement upon the Township of Wall (which did not participate in the litigation), the difficulty with the State's position is that the township had already determined administratively to compel compliance with most of the street standards set forth in the subdivision ordinance. Of even more importance, the proofs were silent as to the nature and extent of the dedication of what came to be known as Bentz Road.

The dedication of private lands to public use...