Jacobs, McGeehan and Eastwood. The opinion of the court was delivered by Jacobs, S.j.a.d.
This is an appeal from an order appointing condemnation commissioners entered by a Judge of the Law Division, Superior Court.
The plaintiff, Bergen County Sewer Authority, filed its verified petition alleging that it has power to condemn under R.S. 40:36A-36; it has determined that it is necessary in order to accomplish its purposes that title to the land described in the petition be acquired and it has not been possible to obtain it because of inability to agree with the interested persons; an inspection of the land discloses that it is vacant and unoccupied and the records disclose that it is owned by the Borough of Little Ferry, a municipal corporation
of New Jersey; and praying for an order appointing condemnation commissioners. Upon the filing of the petition the Judge of the Law Division fixed the time and place for hearing, thereafter the matter was heard on the verified petition, and on December 16, 1949, an order appointing commissioners was entered. On December 23, 1949, the Borough of Little Ferry filed a notice of appeal to the Appellate Division from this order. The appellant's appendix on its appeal consists of the verified petition, order assigning the time and place for hearing, notice of hearing, order appointing commissioners and notice of appeal. Although the briefs of the parties contain controverted factual assertions, our consideration of the appeal must be confined to the facts properly embodied in the record. See Bonanno v. Bonanno , 4 N.J. 268 (Sup. Ct. 1950).
In support of its contention that the Judge of the Law Division erred in entering the order appointing commissioners, the Borough urges that (1) the plaintiff has no authority under R.S. 40:36A-1 et seq. to condemn lands owned by a municipality, (2) R.S. 40:36A-1 et seq. creating the plaintiff violates provisions of the State and Federal Constitutions and (3) the plaintiff's powers are nullified by the terms of R.S. 58:15-1 et seq. The plaintiff while disputing these contentions urges, as a preliminary point, that the Borough has no right to maintain a direct appeal to the Appellate Division from the order appointing commissioners.
Prior to the adoption of the Constitution of 1947 and the new Court Rules, orders appointing commissioners were reviewable on certiorari. R.S. 20:1-8. See Ryan v. Housing Authority of Newark , 125 N.J.L. 336, 342 (Sup. Ct. 1940). On such review evidence material to the issues being presented was obtainable by way of depositions. See Ward v. Keenan , 3 N.J. 298, 306 (Sup. Ct. 1949). Since the adoption of our new Constitution and Rules, orders appointing commissioners are reviewable by the prescribed procedure in lieu of prerogative writs under Rule 3:81. See P.L. 1948, c. 375, p. 1544 (R.S. 1:1-23). We assume for
present purposes, as the plaintiff contends, that the Borough might have instituted a separate proceeding under Rule 3:81-2 in the Law Division where it could have proceeded to trial and introduced material evidence. Nevertheless, under Rule 3:81-7 it had authority to proceed, as it has, by direct appeal to the Appellate Division to review the validity of the order on the record below. That Rule provides that "statutory proceedings in the Superior Court" may be reviewed on appeal to the Appellate Division in the same manner as appeals from the Trial Divisions. It appears to us that this language was intended to encompass condemnation proceedings where a Judge of the Superior Court sits as a "statutory tribunal." Teaneck Township, Bergen County, v. Mercer , 124 N.J.L. 120, 123 (E. & A. 1940); cf. Massett Building Co. v. Bennett , 4 N.J. 53, 60 (Sup. Ct. 1950). We are satisfied that the Borough's appeal is maintainable under Rule 3:81-7 and that although the order is interlocutory in nature it is at this time appealable on the grounds asserted within the liberal intendment of Rules 4:2-2(c) and 4:2-2(d).
The first issue bearing on the merits is whether the plaintiff is empowered to condemn any lands owned by the Borough. In State Highway Commission v. City of Elizabeth , 102 N.J. Eq. 221 (Ch. 1928); affirmed, 103 N.J. Eq. 376 (E. & A. 1928), the Court dealt fully with the right of the State Highway Commission to condemn lands owned by the City of Elizabeth. Although the statute contained no express grant of power to condemn land in public use, the Court found that such power existed by necessary implication. In the course of its opinion the Court referred with approval to the doctrines express in 2 Lewis, Eminent Domain (3 rd Ed. 1909), § 440, p. 796, where the author, in supporting the view that property devoted to a public use may be taken for a paramount public use, suggested that "we should say that there was a reasonable necessity for the taking where the public interests would be better subserved thereby, or where
the advantages to the condemnor will largely exceed the disadvantages to the condemnee." Cf. New Jersey Turnpike Authority v. Parsons , 3 N.J. 235, 249 (Sup. Ct. 1949). It may be noted that although there was some question in the City of Elizabeth case as to whether the municipally owned lands were in fact being used for public purposes, the Court rested its decision on the assumption that they were, but pointed out that "except for the question of present public user, nothing more is required of the complainant to accomplish the taking than if the property were privately owned." There is authority elsewhere to the same effect. See In re ...