State v. Maas & Waldstein Co.

• Decision Date: 03 April 1964
• Docket Number: No. A--113,A--113
• Citation: 83 N.J.Super. 211,199 A.2d 248
• Parties: STATE of New Jersey, by the State Highway Commissioner, Plaintiff-Respondent, v. MASS & WALDSTEIN CO., a corporation of New Jersey Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 211

83 N.J.Super. 211

199 A.2d 248

STATE of New Jersey, by the State Highway Commissioner Plaintiff-Respondent, v. MASS & WALDSTEIN CO., a corporation of New Jersey Defendant-Appellant.

No. A--113.

Superior Court of New Jersey Appellate Division.

Argued March 16, 1964.

Decided April 3, 1964.

Herbert J. Hannoch, Newark, for appellant (Hannoch, Weisman, Myers, Stern & Besser, Newark, attorneys; Herbert J. Hannoch and Barry C. Waldorf, Newark, on the brief).

William J. McCormack, Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

This condemnation matter comes before the court on appeal of defendant Maas & Waldstein Co. from a Law Division order dissolving an Ad interim restraint and striking so much of defendant's answer and separate defenses as did not admit matters alleged in the complaint.

Defendant sought a restraint pending final determination of this appeal. The State has agreed to hold the condemnation proceedings In statu quo pending our determination of the appeal.

Plaintiff instituted a condemnation proceeding to acquire a fee simple absolute interest in a portion of defendant's lands in Newark, N.J., fronting on the west bank of the Passaic River, a navigable stream, for highway purposes--more particularly, for the construction of a portion of Section 5 of Route 21 Freeway. N.J.S.A. 27:7--22.2 empowers the State Highway Commissioner to acquire such an interest.

In June 1956 plaintiff had a study made of the feasibility of a state highway route along and in close proximity to the westerly bank of the Passaic River, from Belleville in Essex County to Clifton in Passaic County. Plaintiff subsequently approved this project as State Highway Route 21 Freeway. It has been open and in use for over three years. Use of the new highway was so great that the heavy traffic created a bottleneck on McCarter Highway (also known as State Highway Route 21) running from Newark to the Belleville terminus of the Freeway. In time plaintiff ordered an engineering study made for the Belleville-Newark extension, and at the end of December 1961 approved a general property map for the acquisition of properties required for the right-of-way, running 1.225 miles from Riverside Avenue in Newark to William Street in Belleville.

The freeway, as it passes by and across defendant's property, is to be constructed in part on defendant's lands, together with the riparian rights it owns along part of its river front, and as to these the Commissioner does not dispute title and ownership. As to other parts which the freeway will traverse, the Commissioner does dispute title and ownership. This dispute is the subject of a separate action which defendant has instituted against the Commissioner, Maas & Waldstein Co. v. Palmer, Docket L--13821--62 P.W., already pretried. Part of the freeway will be constructed on elevated piers and abutments in the Passaic River, immediately in front of defendant's lands.

Plaintiff notified defendant on October 31, 1962 that condemnation of its property had been authorized. On January 16, 1963 defendant was served with a copy of the complaint and an order to show cause, dated January 8, seeking the appointment of condemnation commissioners. The order was adjourned without date, as was plaintiff's notice of motion for immediate possession, as demanded in the complaint.

Defendant filed its answer on February. 28, 1963, denying plaintiff's authority to acquire its lands for the purpose indicated. The first two defenses, relating to accuracy of the description of the lands to be taken, have been abandoned. The core of defendant's contention is reflected in its third separate defense:

'Title to defendant's lands extends to and fronts upon the Passaic River, a navigable water highway in the State of New Jersey. By virtue thereof, defendant owns, is in possession of, is entitled to and enjoys valuable privileges, rights and access to, in and arising from said water highway, including, without limitation, Inter alia use of said river for life and property fire protection by means of municipally operated fire boats and withdrawal of water, and docking rights. These lands, privileges, rights and access, in whole and in part, have been possessed and occupied by defendant and its immediate predecessors in title, as private property under claim of ownership for a long period of time, to wit: more than sixty years, without any right being asserted therein by the State of New Jersey. The proposed taking by plaintiff is not in aid of navigation, but solely for state highway purposes. Plaintiff is without statutory or other power to acquire through condemnation or otherwise, defendant's said lands, rights, privileges and access in said navigable water highway, and deny defendant access thereto and use thereof.'

An amended complaint did nothing more than give a more specific description of the land. Defendant's answer was a repetition of its original pleading.

After advertising for bids, the Commissioner on July 11, 1963 awarded to and thereafter entered into a contract with Public Constructors, Inc., for the construction of the Route 21 Freeway lying between Riverside Avenue in Newark and William Street in Belleville, N.J. Defendant had almost a month's notice that bids would be received on July 11. Public Constructors had entered upon the performance of its contract, but has been obliged to work around defendant's property because of the pending litigation.

Upon the return day of the order to show cause, the Law Division judge, acting pursuant to Bergen County v. Hackensack, 39 N.J. 377, 189 A.2d 4 (1963), fixed a short day for a hearing on defendant's petition for a restraint Pendente lite. Plaintiff moved to strike defendant's answer. We do not have a record of the hearing, but the facts established at that time apparently are not in dispute: defendant held fee title to its lands, together with riparian grants over certain portions thereof; it had been in peaceable possession of some of its lands since 1890, to some since 1926, and to a small strip at the northerly end of its property since 1942. Defendant contended, and it was not denied, that the proposed highway was to be built partially on its lands and partially over and into the Passaic River. Because the proposed highway was not in aid of navigation, defendant contended that federal consent must first be obtained. It also contended that plaintiff was without statutory or other power, by way of condemnation or otherwise, to acquire its lands, rights, privileges and access to the navigable water highway, and could not deny defendant access thereto and the use thereof.

The court overruled defendant's contentions, vacated the restraint it had granted, and struck so much of its answer and separate defenses as did not admit the matters alleged in the complaint. This appeal resulted.

Plaintiff does not question defendant's right to seek injunctive relief. The latter's petition is directly related to the allegations of the complaint seeking title to and possession of the property in question. Cf. In re Monongahela Rye Liquors, 141 F.2d 864 (3 Cir. 1944). In such circumstances, the defense of sovereign immunity would not be available to plaintiff. Indeed, the doctrine of sovereign immunity is currently in disfavor. See McCabe v. N.J. Turnpike Authority, 35 N.J. 26, 31 et seq., 170 A.2d 810 (1961); Cloyes v. Delaware Tp., 23 N.J. 324, 327, 129 A.2d 1, 57 A.L.R.2d 1327 (1957), affirming 41 N.J.Super. 27, 124 A.2d 37 (1956); Taylor v. N.J. highway Authority, 22 N.J. 454, 470, 126 A.2d 313, 62 A.L.R.2d 1211 (1956).

Defendant argues that since the proposed taking by the State Highway Commissioner is not in aid of navigation, but solely for highway purposes, plaintiff is without statutory power to condemn interests in a navigable highway controlled by the United States of America. It first asserts that the power to condemn must be strictly construed. It then contends that there is nothing in the statutes authorizing the Commissioner to acquire an interest in a navigable waterway. There can be no question as to the first proposition. N.J. Zinc & Iron Co. v. Morris Canal and Banking Co., 44 N.J.Eq. 398, 404, 15 A. 227, 1 L.R.A. 133 (Ch. 1888), affirmed o.b., 47 N.J.Eq. 598, 22 A. 1076 (E. & A. 1890); N.J. Turnpike Authority v. Parsons, 3 N.J. 235, 249, 69 A.2d 875 (1949). Hester v. Miller, 11 N.J.Super. 264, 270, 78 A.2d 322 (Law Div. 1951), affirmed and appeal dismissed 8 N.J. 81, 83 A.2d 773 (1951).

As for defendant's claim that the Commissioner lacked statutory authority to acquire an interest in a navigable stream, we start with the basic proposition that the State Highway Commissioner is the Alter ego of the State. Strobel Steel Construction Co. v. State Highway Comm'n, 120 N.J.L. 298, 300, 198 A. 774 (E. & A. 1938), quoting with approval Curtis & Hill Gravel & Sand Co. v. State Highway Comm'n, 91 N.J.Eq. 421, 430--31, 111 A. 16 (Ch. 1920). And see N.J.S.A. 27:1--1. R.S. 27:7--22, N.J.S.A., gives the Commissioner broad powers of condemnation:

'The commissioner may acquire lands or rights therein by * * * condemnation in the manner provided in chapter 1 of the title Eminent Domain (§ 20:1--1 et seq.), and enter upon and take property in advance of making compensation therefor where for any reason he cannot acquire the property by agreement with the owner.

* * *'on

And R.S. 27:7--21(g), N.J.S.A., provides that the Commissioner may 'do whatever may be necessary or desirable to effectuate the purpose of this title (Title 27, Highways).' The Highway Act should be liberally construed to reflect its purpose, the building of state highways. Taylor-White Extracting Co. v. State Highway Comm'n, 5 N.J.Misc. 255, 136 A. 183 (Sup.Ct. 1927), affirmed o.b. 105 N.J.L. 498, 144 A. 921 (E. & A. 1929). The act does not spell out...