Sterner v. Nixon

• Decision Date: 14 May 1936
• Docket Number: No. 34.,34.
• Citation: 185 A. 48
• Parties: STERNER, Highway Com'r, v. NIXON et al.
• Court: New Jersey Supreme Court

185 A. 48

STERNER, Highway Com'r,

v. NIXON et al.

No. 34.

Court of Errors and Appeals of New Jersey.

May 14, 1936.

Appeal from Circuit Court, Somerset County.

Condemnation proceedings by E. Donald Sterner, State Highway Commissioner, against Warford L. Nixon and wife, and others. From the judgment, petitioner appeals.

Affirmed.

David T. Wilentz, Atty. Gen., and Pierre P. Garven, Chief Counsel for State Highway Com'r, of Jersey City (Frank A. Mathews, Jr., of Camden, Asst. Counsel, of counsel), for appellant.

Daniel H. Beekman, of Somerville, for respondent.

PERSKIE, Justice.

This is a condemnation case. The question requiring decision is whether a landowner is entitled to have a jury determine the necessity, and cost, for such elements as a sidewalk, fence, curbing, and embankment, i. e., "putting land in shape to meet the changed condition of the highway," in fixing his present and prospective damages when a part of his tract of land is taken by the state for highway purposes.

The facts which give rise to this question are these: Respondent, Dr. Warford L. Nixon, was the owner of a rectangular lot with a three-story dwelling house thereon, located in the borough of Somerville, county of Somerset, N. J. The lot had a frontage of 210 feet on Somerset street, a previously existing highway, and a depth of 300 feet, containing in all about 63,000 square feet.

Pursuant to authority (an act to regulate ascertainment and. payment of compensation for property condemned, Revision of 1900, c. 53, P.L. 1900, p. 79, 2 Comp.St. 1910, p. 2182 et seq., § 1 et seq.), and because he was unable to acquire the needed land in the construction, etc., of State Highway Route No. 31 by agreement with respondent, appellant did, on August 27, 1930, in advance of making compensation therefor, enter upon and take a triangular portion from the southwest corner of respondent's tract of land, amounting in area to about 1,490 square feet. Section 111, subd. (e), P.L. 1927, c. 319, pp. 712, 725. As a result of that taking, a new street was created along the westerly side of the property.

In further pursuance of the condemnation act of 1900 (2 Comp.St.1910, p. 2184, §§ 5, 6), as aforesaid, three commissioners were appointed to "make a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the petitioner for such land * * * and damage aforesaid." On October 3, 1934, the commissioners made their report awarding respondent $2,480.

The state highway commissioner, dissatisfied with the award of the commissioners, appealed to the Somerset county circuit court. The issue to be tried was framed. The jury was to determine "the value of the lands taken and the damages sustained by reason of the taking and condemning thereof, as of December 8, 1935 * * *." The last-stated date was changed, by stipulation, to August 27, 1930.

The jury returned a verdict in favor of respondent in the sum of $2,026. To this amount was added interest from August 27, 1930, amounting to $522.71. It is the judgment entered on this verdict, in the sum of $2,548.71, that is here under review.

It is well settled that where lands are taken by proceedings in eminent domain, the measure of damages to the landowner is "the difference in value of the tract before and after the taking," or "the value of the land that is taken by the condemning party and compensation for the diminution in value * * * that will result from such taking." Philadelphia & C. Ferry Co. v. Inter-City L. R. R. Co., 76 N.J.Law, 50, 68 A. 1093; 20 C.J. § 189, p. 730. "Where a street or highway is laid out through a tract of land, the owner is entitled to compensation not only for the value of the land actually taken, but also for the damage, if any, accruing to the remainder, as measured by the difference in the value Of the entire tract before and after the taking. It is commonly held that the proper elements of damages are whatever tend to make the land of less value after the location than it was before. * * *" 20 C.J. § 215, 15, p. 757.

In Braidburn Realty Corporation v. East Orange, 107 N.J.Law, 291, 153 A. 714, this court held (where lands are taken in a proceeding in eminent domain for the purpose of abstracting therefrom subterranean waters for distribution and sale) the owner was entitled to the value of the land taken and damages, resulting from such taking, to his remaining lands, and this included all damages accruing to the owner of the lands from any and every physical effect produced by the taking and use to which the property taken is put and measured by the rule of "reasonable user" as laid down and adopted in Meeker v. East Orange, 77 N.J.Law, 623, 74 A. 379, 25 L.R.A.(N.S.) 465, 134 Am.St.Rep. 798.

In Green v. Irvington, 76 N.J.Law, 5, 69 A. 485, 486, affirmed 81 N.J.Law, 723. 73 A. 602, it was held that: "The cost of putting his lot in shape to meet the changed conditions of the highway was a proper element to be considered by the jury in...