Walsh v. Bd. of Educ. of Newark

• Decision Date: 05 March 1906
• Citation: 73 N.J.L. 643,64 A. 1088
• Parties: WALSH v. BOARD OF EDUCATION OF NEWARK.
• Court: New Jersey Supreme Court

64 A. 1088

73 N.J.L. 643

WALSH

v. BOARD OF EDUCATION OF NEWARK.

Court of Errors and Appeals of New Jersey.

March 5, 1906.

(Syllabus by the Court.)

Error to Circuit Court, Essex County.

Action by Margaret A. Walsh against the board of education of Newark. Judgment for plaintiff, and defendant brings error. Affirmed.

The board of education of the city of Newark, Essex county, having or claiming power to take land for public use, determined to acquire a certain parcel of land on the easterly side of South Ninth street in the said city of Newark, Essex county, belonging to Margaret A. Walsh, and, being unable to acquire such land by agreement with the said owner, took proceedings for the condemnation thereof, in accordance with the statute entitled "An act to regulate the ascertainment and payment of compensation for property condemned or taken for public use (Revision of 1900)," approved March 20, 1900. P. L. 1900, p. 79. Upon the petition presented by the board of education to the Chief Justice of the Supreme Court, such proceedings were had that, by their report, dated June 28, A. D. 1904, and filed in the office of the clerk of Essex county on June 30, A. D. 1904, the commissioners appointed for that purpose appraised the value of the parcel of land to be taken, and assessed the damages sustained by the taking thereof at the sum of $1,000. This report seems to have been satisfactory to the board of education, but it was not so to Margaret A. Walsh. Within the 10 days limited, she appealed to the circuit court of the county of Essex; and thereupon the court (Adams, Circ. J.), by a rule entered September 20, A. D. 1904, directed an issue between the parties, for trial by jury, and fixed October 20th, as the day for the trial. By another rule, allowed December 3, A. D. 1904, a struck jury and a view of the premises were ordered, and December 19th fixed as the day for the trial of the issue.

When the issue was called for trial on the day last mentioned, the attorney of the board of education (the respondents) moved for leave to discontinue the condemnation proceedings on the payment of the costs and reasonable expenses of Margaret A. Walsh (the appellant), and the motion was denied by the court, on the ground that the statutory time within which abandonment might be made had expired. To this ruling, an exception was prayed and sealed. The trial then proceeded, and, in the course thereof, one William Robotham was sworn for the respondents and his direct examination was, in part, as follows: "Q. Did you ever own the property that is now being condemned? A. I did. Q. When did you sell it and to whom, if you remember? A. I sold it to Mr. Lopez about a year ago. Q. How long had you owned that property? A. Six or seven years, I guess. Q. And are you familiar with the property? A. Yes, sir. Q. Did you ever own any other property around there? A. No, sir. Q. Can you tell me what, in your opinion, that property is worth?" On objection by the attorney of the appellant, this question was overruled on the ground that the witness did not appear to be qualified to speak as an expert. To this ruling also, an exception was prayed and sealed.

The jury assessed the value of the land and the damages sustained at $2,057.33; and, upon this finding, judgment final was entered in the circuit court of Essex county, on December 19, A. D. 1904. The judgment being removed directly into the Court of Errors and Appeals, error is assigned in the following particulars: Because the application for leave to abandon the proceedings to condemn the property of Margaret A. Walsh, and to discontinue the said proceedings upon payment of her costs and expenses was denied by the court; because the testimony of William Robotham as to his opinion about the value of the land to be condemned was excluded upon objection by the owner.

Malcolm MacLear, for plaintiffs in error.

The intent of the statute of March 20, 1900, was to limit the time of discontinuing to 20 days after the commissioners made their report only in cases where no appeal is taken.

The theory of the discontinuance is that the party or agent desiring the property is taking it for the public good, and should have a right to say whether the price awarded shall be paid. If the agent has no such right, it might result in detriment to the public.

Herbert Boggs, for defendant in error.

The circuit judge had no jurisdiction to hear and determine the motion to discontinue the condemnation proceedings.

The respondents had no right to discontinue the proceedings at the time when the motion was made. The statute limits the right to abandon to the 20 days after the filing of the commissioner's report. Where the condemning party allows this time to elapse without action, it is to be assumed that the decision is to take the property, subject to the uncertainty of the appeal.

The testimony of Robotham was properly excluded. He had no expert knowledge, and his opinion was of no possible value.

GREEN, J. (after stating the facts). 1. Taking up first the second assignment of error, we observe that it was not urged by the plaintiffs in error on the argument. Hence this court is not obliged to consider it. See Loper v. Somers (1904) 71 N. J. Law, 657, and cases cited at page 661, 61 Atl. 85 at page 86. Nevertheless, it may be remarked that if it had been so urged, the allegation of error would have been found unmaintainable. To reach this conclusion, it would not he necessary to distinguish between expert testimony and opinion evidence, which are differentiated by Prof. Wigmore in his philosophical work on Evidence, vol. 1, §§ 555, 557, and by Justice Garrison in Koccis v. State (1893) 56 N. J. Law, 44, 47, 27 Atl. 800, inasmuch as both types of evidence require opportunity and observation extending beyond a single or particular instance. From the examination of Mr. Robotham, it appeared, merely that he had owned the parcel of land in question for six or seven years, and had sold it a year before the trial, for $1,200. Hence, to say nothing of personal capacity or of study or practice, there were shown on Ms part no opportunity to observe and no actual observation in the locality of the land which fitted him to speak of its value. The witness had no special knowledge of values which, being imparted to the jurors, could aid them in the discharge of their duty. In ruling out the question which sought Robotham's opinion as to the value of the land in December, 1904, the circuit judge was fully justified by Riley v. Camuen & Trenton Ry. Co., decided a few months earlier in this court and reported in 70 N. J, Law, 289 et seq. 57 Atl. 445. See, also, Haulenbeck v. Cronkright (1873), 23 N. J. Eq. 407, at page 413; Laing v. United N. J. R. R. & C. Co. (1892) 54 N. J. Law, 576, at page 577, 25 Atl. 409, at page 410 (33 Am. St. Rep. 082).

2. Taking up the first assignment, we note that error is alleged in the denial of the motion by the attorney of the board of education for leave to abandon the condemnation, and to discontinue the proceedings upon payment of the owner's costs and expenses. The legal argument in support of the allegation of error is that the board of education in taking the land is or should be acting for the public good, and should therefore have a right to say whether the price awarded should be paid; and that, if such right should be denied, detriment to the public might ensue. We would not forget that there may be weighty matters involved in this case, and we would never refrain from rightly conserving the public weal, but we remark that the argument made is, in form, simply the argument ab inconvenienti; and that, although we have the authority of Lord Coke (Co. Litt. 66) for saying "argumentum ab inconvenienti plurimum valet in lege," yet it must be borne in mind that "if the law be clear, inconveniences afford no argument of weight with the judge; the Legislature alone can remiedy them." See Broom's Legal Maxims (7th Eng. Ed), p. 147; Pike v. Hoare (1763) 2 Eden, 182, at page 184. Neglecting for the time as elements of decision, that it nowhere appears in the record that the board of education had resolved to abandon the proceedings, or, having so resolved, had applied to a Justice of the Supreme Court to determine the reasonable costs and expenses of the owner, or had filed or offered to file a discharge of her land from the lien of the notice of its pendens (all of which things might be worthy of consideration), we entertain the opinion that there is a law which is applicable to the case in hand and that its meaning is clear. The situation at the time of the motion was that a petition had been presented for the appointment of commissioners to fix the compensation to be paid for the land, and such proceedings had been had thereupon that the report of the commissioners had been made and filed; and that an appeal had been taken from this report, and an issue between the parties framed for trial, nevertheless, that the value of the land and the damages for the taking stood, prima facie at least (see P. L. 1900, p. 85, § 14) at the sum ascertained by the commissioners—$1,000. The statute was, at the time of the motion, and still is, as follows: "Any proceeding to condemn, taken under this act, may be abandoned within twenty days after the filing of the report of the...