Valentine v. Lamont

• Decision Date: 23 November 1953
• Docket Number: No. A--11,A--11
• Citation: 100 A.2d 668,13 N.J. 569
• Parties: VALENTINE v. LAMONT et ux. (BOARD OF EDUCATION OF JERSEY CITY, HUDSON COUNTY, third-partydefendants-respondents, et al.).
• Court: New Jersey Supreme Court

Page 569

13 N.J. 569

100 A.2d 668

VALENTINE v. LAMONT et ux. (BOARD OF EDUCATION OF JERSEY CITY, HUDSON

COUNTY, third-partydefendants-respondents, et al.).

No. A--11.

Supreme Court of New Jersey.

Argued Oct. 19, 1953.

Decided Nov. 23, 1953.

Louis G. Morten, Jersey City, for plaintiff-appellant.

Theodore Rabinowitz, Jersey City, for defendants and third-party plaintiffs-respondents.

Robert H. Doherty, Jersey City, for third-party defendants-respondents.

Edmund S. Johnson, Jersey City, for intervener-respondent.

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal from a judgment of the Appellate Division which affirmed a judgment of the Superior Court, Law Division, which in turn had dismissed the appellant's complaint in ejectment and determined that the interveners-respondents held a fee simple absolute title to the premises in question by a deed of conveyance to them, dated April 19, 1946, from the respondent, the Board of Education of Jersey City, Hudson County, a body corporate.

The action was instituted to test the validity of the sale of such premises by the board of education to the interveners-respondents which property the board had acquired by condemnation in 1922. The theory of the action in ejectment was that a right of reverter remained vested in the appellant because the Constitution (1844) and the applicable statutes merely permitted the taking of a fee simple determinable by eminent domain and not a fee simple absolute.

In 1922 the respondent-board exercised its right of eminent domain, pursuant to L. 1903 (2nd Spec.Sess.) c. 1, sec. 49, as amended by L. 1922, c. 226, sec. 1 (now R.S. 18:6--16, 18:6--24, N.J.S.A.), and in conformity with the Eminent Domain Act, Revision of 1900 (now R.S. 20:1--1 et seq., N.J.S.A.), to acquire the said property from the appellant's predecessor in title. Condemnation commissioners were appointed who fixed the fair market value of the entire property at $13,600. From this award no appeal was taken.

The board took title to the property and for 24 years the title and right of possession of the board was never disputed by the appellant or her predecessor in title, nor was any claim made that the board had acquired no greater estate than an easement or fee simple determinable, or that a dominant estate was held by the appellant and her predecessors in title and only a servient estate held by the respondent board of education. This despite the fact that the property was not used for school purposes but was occupied by monthly tenants, that the board received the monthly rentals, paid the real estate and water taxes on the properties and assumed complete control and dominion of the properties as sole owner thereof.

In September 1945 the board adopted two resolutions pursuant to R.S. 18:5--24, 25 and 26, N.J.S.A., that (1) the property was no longer needed for school purposes and that (2) it be sold pursuant to statute at public auction. A minimum sales price of $5,900 was fixed and the property was purchased by the defendant-respondent Lester Lamont. The intervener-respondent Anthony Lamont is the present holder of a mortgage of $4,000 on the property as security for the advancement of such sum to Lester Lamont and his wife at the time of the sale.

The appellant concedes the good faith of the board in acquiring the property for school purposes but challenges the right of the board to convey a fee simple absolute and instituted its action in ejectment.

Both the trial court and the Appellate Division in carefully reasoned opinions, 20 N.J.Super. 454, 90 A.2d 143 (1952), and 25 N.J.Super. 342, 96 A.2d 417 (1953), rejected the appellant's contentions as to the lack of legislative power and held that the fair market value of a fee simple absolute was the basis of the award made in the condemnation proceeding in 1922 and that a reasonable construction of the applicable statutes (now R.S. 18:6--16, 18:6--24 and 18:5--25, N.J.S.A., which are set forth at length in the opinions below) clearly indicate a legislative intention to empower the board of education to take a fee simple absolute in property acquired for school purposes by eminent domain, R.S. 20:1--1 et seq., N.J.S.A. The appeal was taken to this court under Rule 1:2--1(a), now R.R. 1:2--1(a), on the ground that the Legislature was never vested with power, under the Constitution (1844), Art. I, par. 16, to enact laws to permit the acquisition of a fee simple absolute title by eminent domain.

The argument of the appellant presents the following questions:

1. Under the Constitution of the State of New Jersey (1844, as amended), Art. I, pars. 1 and 16, can the Legislature enact statutes whereby a board of education, having been granted the right to exercise the power of eminent domain, take and condemn private land for a public use and acquire a title thereto in fee simple absolute?

2. Under R.S. 18:6--24, N.J.S.A., can a board of education take and condemn land and other property for school purposes, under the statutes in force in July 1922, paying compensation as provided by law, and acquire a title thereto in fee simple absolute which it can thereafter convey to private persons for private uses by virtue of R.S. 18:5--25, N.J.S.A., adopted in the year 1929?

3. If land and other property are taken and condemned as stated in question 1 but subsequently in 1946 the public use for which said land and other property were so taken and condemned, namely school purposes, is abandoned, and the board declares they are no longer needed for such use and executes and delivers a deed, reciting that it conveys said lands and other property to private individuals for private use, do said land and other property revert to such person as was the owner thereof at the time of such taking and condemnation, or if such owner be deceased, to such persons as succeeded to such title upon the death of such owner?

Our answer to the first two questions is in the affirmative and in the negative as to the third question.

The right of eminent domain is of very ancient origin, 2 Kent, Commentaries (14th Ed.), p. *339, is inherent in all governments and requires no constitutional provision to give it force. It is an inherent and a necessary right of the sovereignty of the state. National Docks Ry. Co. v. Central R. Co., 32 N.J.Eq. 755, at page 763 (E. & A. 1880); 2 Kent, Commentaries supra; 2 Cooley, Constitutional Limitations (8th ed.), p. 1110; Lewis, Eminent Domain (3rd ed.), p. 7.

It is generally spoken of in reference to those cases in which the government seeks to appropriate property against the will of the owner and is said to be that superior right of property pertaining to the sovereignty by which private property acquired by its citizens under its protection may be taken and its use controlled for the public benefit without regard to the wishes of its owners. More accurately, it is the rightful authority which exists in every sovereignty to control rights of a public nature which pertain to its citizens in common and to appropriate and control property for the public benefit as the public safety, necessity, convenience, or welfare may demand. 2 Cooley, Constitutional Limitations, supra, p. 1110; Ryan v. Housing Authority of City of Newark, 125 N.J.L. 336, 340, 15 A.2d 647 (Sup.Ct.1940); Bergen County Sewer Authority v. Borough of Little Ferry, 5 N.J. 548, 552, 76 A.2d 680 (1950). It is the highest and most exact form of property, notwithstanding the grants to individuals, which remains in the government or in the aggregate body of the people in their sovereign capacity; and they have the right to assume possession of the property in the manner directed by the Constitution and the laws of the State, whenever the public interest requires. Beekman v. Saratoga & Schenectady R. Co., 3 Paige N.Y. 45, at page 73, 22 Am.Dec. 679.

In theory it exists in absolute form in the ultimate source of authority in every organized society. National Docks Ry. Co. v. Central R. Co., supra, 32 N.J.Eq. at page 763. However, even at the point of its ancient origin and ever since it has always been subject to the equitable principle that property cannot be taken for public use without just compensation. 2 Kent, Commentaries, supra, p. *339; Attorney General ex rel. Pattee v. Stevens, 1 N.J.Eq. 369 (Ch.1831); Scudder v. Trenton Delaware Falls Co., 1 N.J.Eq. 694 (Ch. 1832). Further, the taking of the right, title, and interest of the owner should not be greater than necessary to effectuate the public use which called the power of eminent domain into play. The power lies dormant until called into play by the Legislature under our form of government. 2 Cooley, Constitutional Limitations, supra, p. 1119 et seq.; Coster v. Tide Water Co., 18 N.J.Eq. 54 (Ch.1866), affirmed 18 N.J.Eq. 518 (E. & A.1866).

The Constitution (1776) contained no reference to the power of eminent domain which was subjected to the above quitable limitations of the common law. The Constitution (1844) which is here applicable, in Art. I, par. 16 stated:

'Private property shall not be taken for public use, without just compensation; but land may be taken for public highways, as heretofore, until the legislature shall direct compensation to be made.'

Prior to the adoption of this provision lands were taken for highway purposes without compensation. This power was claimed and enforced, both by the right of eminent domain and reliance on the reservations as to a percentage of the lands for such purposes in the grants of the Proprietors of East and West Jersey. State v. Potts, 4 N.J.L.

Page 347

(Sup.Ct.1817); Hudson County Land, etc., Co. v. Seymour, 35 N.J.L. 47 (Sup.Ct.1871); Nichols, Eminent Domain, sec. 1:22(4), 8.1.

It has always been the law of this State, both at the common law and under the eminent domain statute, that the land of the abutting owner was merely charged with the easement of public travel and the necessary incidents thereof and...