On appeal from the Somerset County Circuit Court.
For the appellant, David T. Wilentz, attorney-general; Pierre P. Garven, chief counsel for state highway commissioner (Frank A. Matthews, Jr., assistant counsel, of counsel).
For the respondent, Daniel H. Beekman.
The opinion of the court was delivered by
PERSKIE, J. 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, New Jersey. The lot had a frontage of two hundred and ten feet on Somerset street, a previously existing highway, and a depth of three hundred feet, containing in all about sixty-three thousand square feet.
Pursuant to authority (An act to regulate ascertainment and payment of compensation for property condemned Revision of 1900), Pamph. L. 1900, ch. 53, p. 79), and because he was unable to acquire the needed land in the construction, &c., of state highway route number 31 by agreement with respondent, appellant did, on August 27th, 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 one thousand four hundred and ninety square feet. Pamph. L. 1927, pp. 712, 725, § (e), P111. 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, as aforesaid, three commissioners were appointed "to make a just and equitable appraisement of the value of the same, an assessment of the amount to be paid by the petitioner for such lands * * * and damage aforesaid * * *." On October 3d, 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 8th, 1935 * * *." The last stated date was changed, by stipulation, to August 27th, 1930.
The jury returned a verdict in favor of respondent in the sum of $2,026. To this amount was added interest from August 27th, 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 the 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 the taking." Philadelphia and ...