State by State Highway Commissioner v. Totowa Lumber & Supply Co.

• Decision Date: 13 July 1967
• Docket Number: No. A--179,A--179
• Citation: 96 N.J.Super. 115,232 A.2d 655
• Parties: STATE of New Jersey, by STATE HIGHWAY COMMISSIONER, Plaintiff-Respondent, v. TOTOWA LUMBER & SUPPLY COMPANY, a corporation of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 115

96 N.J.Super. 115

232 A.2d 655

STATE of New Jersey, by STATE HIGHWAY COMMISSIONER Plaintiff-Respondent, v. TOTOWA LUMBER & SUPPLY COMPANY, a corporation of New Jersey Defendant-Appellant.

No. A--179.

Superior Court of New Jersey, Appellate Division.

Argued May 15, 1967.

Decided July 13, 1967.

Martin Klughaupt, Passaic, for appellant.

David A. Biederman, Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).

Before Judges CONFORD, FOLEY and LEONARD.

The opinion of the court was delivered by

LEONARD, J.A.D.

This is a condemnation case in which defendant appeals from a judgment of the Law Division in favor of plaintiff ordering the appointment of commissioners to appraise the value of a portion of defendant's land to be taken in condemnation by the State Highway Commissioner (State) in connection with the construction of Route 80 in the Borough of Totowa.

Before condemnation defendant owned 3.8 acres of land, triangular in shape, with an 800 frontage on River View Drive. Route 80 is planned to run east and west, perpendicular to River View Drive. Defendant does not contest the taking of that parcel of its land designated as No. 104, comprising .028 acre with a 67 frontage. In dispute is the right to condemn No. 104B, an adjoining segment of .061 acre and an 80 frontage, which lies outside the access right of way of the highway.

Union Building and Construction Corporation (Union) owns ten acres of land which would be divided by the highway. Condemnation left Union a two-acre tract north of the highway and about four acres to the south. This latter tract would be landlocked if not given access through defendant's land, since all of Union's frontage on River Drive is to be taken by the highway and defendant's land would lie between it and the road.

Original negotiations between the State and defendant were confined to parcel No. 104 and a tentative agreement with respect thereto was reached in January 1965. It was not until July of that year that the State proposed to acquire No. 104B. The State's offer of $2300 therefor was refused and that sum has been deposited in court. It is conceded that the proposed condemnation is solely for the purpose of unlocking Union's property.

By agreement of December 16, 1965 the State contracted to pay Union $163,000 for land taken and to build a 25 -wide access road from River View Drive over parcel No. 104B which the State would acquire. This road would extend 130 , 75 of which would be within Union's retained property and the balance within defendant's property. The State would maintain the latter portion and Union would maintain the balance. The construction costs of the road, including paving, would be $2733. Adding this to the $2300 proposed to be paid to defendant for its land, the total costs of the access road would be $5033.

Defendant's primary contention is that the State cannot take (by condemnation) the disputed parcel of defendant's land to provide Union with what it describes as a private driveway, usable only by that corporation. Defendant argues that to allow this result would be to take private property for private use. It further contends that the State has abused its discretion in this regard.

It is not disputed that a taking of private property for private use is illegal. The question here is whether the proposed use of parcel No. 104B is public or private.

As said by Judge Goldmann in Essex County v. Hindenlang, 35 N.J.Super. 479, 114 A.2d 461, 466 (App.Div.1955), appeal dismissed, 24 N.J. 517, 132 A.2d 807 (1957):

'Courts dealing with problems of eminent domain have generally been reluctant to define the phrase 'public use.' * * * (T)hey have recognized that the phrase 'is incapable of a precise and comprehensive definition of universal application.' * * * Judicial attempts to describe the subjects to which the expression 'public use' would apply have proceeded on two different theories. One theory of 'public use' limits its application to 'use by the public'--public service or employment. * * * Courts that take the broader and more liberal view in sustaining public rights at the expense of property rights hold that 'public use' is synonymous with 'public benefit,' 'public advantage' or 'public utility."

We have adopted the liberal view as to the meaning of 'public use.' State Highway Com'r, State by v. Davis, 87 N.J.Super. 377, 209 A.2d 633 (App.Div.1965), certification denied, 46 N.J. 135, 215 A.2d 30 (1965); State Highway Commissioner v. Buck, 94 N.J.Super. 84, 226 A.2d 840 (App.Div.1967). In Davis the complaining landowner was one of several persons from whom land was to be taken to provide an access road to several owners of large areas of land which had been rendered landlocked by highway takings. It seemed likely that one of the properties would be subdivided for further development and that the proposed access road would be joined with another road to provide a through thoroughfare of benefit to a number of people. The court said, 'Thus, it cannot be reasonably concluded here that the State merely took the property of one man for the private use of another. The roadway is open to the general public and is not limited to private use' (87 N.J.Super. at p. 380, 209 A.2d at p. 634). The court also noted that it was reasonable to take only land needed for the freeway and unlock the remaining land since this was the more economical solution and converted the land into a potential area for future development (at p. 381).

Buck measured 'public use' in the terms of public interest. There the State needed approximately four acres of defendant's land for highway purposes. It proposed to take an additional acre to build an access road to a 5.3-acre plot of another party which otherwise would be landlocked. It also appeared that the additional one acre proposed to be taken would be substandard in size with respect to an existing zoning ordinance. The court, in affirming the trial court's approval of the State's proposal, stated:

'The proofs amply support the findings of the trial judge and his conclusion. As he pointed out, when the State condemns all of a tract except a portion too small to comply with the zoning ordinance, the State must pay not only for what it takes but also for the damage to the remainder. Therefore when, as here, the value of the whole is little more than the value of the major part, it is sound business judgment and in the public interest to take the entire parcel. This avoids the expense of litigating the damage to the remainder and the hazards of a large award for such damage. We hold that here there was such a taking, and that here these considerations alone satisfied the requirements of N.J.S.A. 27:7A--4.1. In addition, we think the Commissioner, within the confines of said statute, may incidentally seek to avoid creating or leaving a landlocked parcel or parcels that do not comply with local zoning requirements. Rather than leave a land segment useless under local zoning and subject the State to payment of damages incident to unacquired remainder land, the Commissioner made a sound and sensible decision to condemn the entire tract at a practically equivalent cost, especially when in so doing he preserved accessibility to adjoining lands which have an apparent potential for development.' (94 N.J.Super. at pp. 87--88, 226 A.2d at p. 842)

At the trial the State's expert witnesses testified without contradiction that the proposed plan would be economically advantageous. Their testimony indicated that were the State forced to acquire Union's entire ten acres it would be forced to pay $205,000 for the land and $270,422 for the improvements, a total of $475,422. Alternatively if no access road was built and the State took only the southerly four acres, the State risked an award as high as $165,000 for land and $270,422 for buildings, or $435,422 in total. As noted, under the present proposal, the State will be obligated to pay only $168,033 ($163,000 plus the cost of the road).

Defendant argues that Davis is not applicable because it 'involved a public road, not a private driveway of no use to anyone but Union.' Herbert K. Englishman, a supervising engineer of design for the State conceded that 'the only property owner that could possibly be served by this driveway * * * would be Union.'

In Essex County, supra, the court said:

'The number of people who will participate in or benefit by the use for which the property is condemned is not the determinant of whether the use is or is not a public one. * * * (I)t is not necessary, for a use to be public, that the entire community or any considerable portion of it should enjoy the use.' (35 N.J.Super., at p. 491, 114 A.2d at p. 468.)

In Buck, supra, the court stated:

'A use is not denominated public or private by simply relying upon the number of persons it serves. * * * It has been stated that a use does not 'fail to be public upon the ground that the immediate enjoyment of it is limited to a small group or Even to a single person.'' (94 N.J.Super. at p. 89, 226 A.2d at p. 842; emphasis added)

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