Taylorwhite Extracting Co. v. State Highway Comm'n

• Decision Date: 07 February 1927
• Docket Number: No. 266.,266.
• Citation: 136 A. 183
• Parties: TAYLORWHITE EXTRACTING CO. v. STATE HIGHWAY COMMISSION.
• Court: New Jersey Supreme Court

136 A. 183

TAYLORWHITE EXTRACTING CO.

v. STATE HIGHWAY COMMISSION.

No. 266.

Supreme Court of New Jersey.

Feb. 7, 1927.

Certiorari by the Taylor-White Extracting Company against the State Highway Commission to review an order appointing commissioners to examine and appraise lands required to be taken by the State for public use in the construction of a highway. Writ dismissed.

Argued January term, 1927, before BLACK and CAMPBELL, JJ.

Starr, Summerill & Lloyd, of Camden, for prosecutor.

Edward L. Katzenbach, Atty. Gen., and Fred W. DeVee, Asst. Atty. Gen., for defendant.

PER CURIAM. Certiorari was allowed by Mr. Justice Katzenbach on June 16, 1926, to review an order made by him on the petition of the state highway commission of the state of New Jersey dated March 29, 1926, appointing commissioners to examine and appraise lands required to be taken by the state for public use in the construction of the state highway in the city of Camden. The writ was allowed upon condition that it shall not operate as a stay of the proceedings under review.

The prosecutor writes down eleven reasons for setting aside the order. These are argued under two heads in the prosecutor's brief.

First. Whether the form and contents of the petition and the resolution authorizing the action are sufficient to justify the appointment of the commissioners?

Second. There is no authority under the law to justify the commission in taking lands of the prosecutor for any other purpose than for the construction of a highway. This latter goes to the purpose of the condemnation and the ultimate use and disposition of the property sought to be condemned.

As to the first point, all jurisdictional facts are alleged and shown in the petition. It recites that the land is to be taken for the purposes recited therein, to wit, the construction, maintenance, and repair of a state highway. The petition complies with the statute. The Eminent Domain Act; 2 Comp. Sts. of N. J. 2183, § 2; P. L. 1900, p. 79. This is sufficient. Philadelphia, etc., Ferry Co. v. Intercity Link R. R. Co., 73 N. J. Law, 86, 62 A. 184, affirmed 74 N. J. Law, 594, 65 A. 1118.

The petition and proofs presented to the justice are not required to make recitals of matters which the Eminent Domain Act does not require to be set forth; such recitals are not essential. Id.

So, the resolution authorizing condemnation is in accordance with section 1 of the above act. 2 Comp. Sts. of N. J. p. 2182, § 1. The commission was appointed by an order of the Supreme Court Justice, on March 29, 1926; the certiorari was allowed on June 16, 1926, rather late to raise questions as to form or substance of the petition and resolution. There is no legal merit in this point. The prosecutor can take nothing under this head.

The petition of the state highway commission to which is attached a map or diagram describes the land to be taken as parcels 50 A and 50 B; also, described by metes and bounds containing 89,551 square feet of land. This is the same land as is designated by the numbers 50, 52, 55, 56, 57, and 58. Testimony taken under the rule of the Supreme Court which by consent is to be considered under the writ of certiorari. A proposed agreement was put in evidence and designated as entrance road ...