This matter comes on before this court on a stipulation of facts, the affidavit of the Acting State Highway Engineer and the correspondence between the parties, attached to and made a part of the stipulation.
The question raised relates to the power of the State Highway Commissioner to acquire lands for purposes other than those mentioned with particularity in the provisions of the Highway Act, and is in lieu of prerogative writ.
The pertinent facts as stipulated are as follows:
"1. On or about March 14, 1949, the plaintiff, James A. Hester, was the owner of a tract of land located on Parkway Avenue in Ewing Township consisting of approximately thirty acres. Plaintiff's land is separated from lands owned by the State of New Jersey, used by the State Highway Department and known as Fernwood Service Station, by a twenty foot strip of land owned by a third party which has also been under occupancy by the Department and is now under formal contract of sale to the Department since October 5, 1950. This suit is brought concerning a part of plaintiff's land consisting of 11.4 acres and is that part of plaintiff's land in closest
proximity to lands owned by the State of New Jersey. The portion of land in question is more particularly described in the petition in condemnation to which reference is hereinafter made.
"2. Ransford J. Abbott is now State Highway Commissioner and is substituted as defendant for Spencer Miller, Jr., as State Highway Commissioner. No stipulation is made with regard to Ransford J. Abbott individually as a defendant. Plaintiff does not stipulate to dismiss as against Spencer Miller individually.
"3. On or about March 15, 1949, the State Highway Commissioner, through his agents and servants, entered into and took possession of 11.4 acres of plaintiff's land as above described, ever since which time plaintiff has been deprived of the use thereof.
"4. The correspondence between the parties and their attorneys, copies of which are attached hereto, are made a part of this stipulation.
"5. Defendants now assert that the lands in question were taken for the purposes stated in the affidavit of Edward W. Kilpatrick, dated October 13, 1949, filed in this cause in the Chancery Division, and a copy of which is attached hereto for more ready reference.
"6. On March 23, 1949, the State Highway Commissioner took the following action as recorded in the minutes of the meeting of the Commissioner and his staff as follows:
"' Right of Way -- Fernwood Station
"'(Item 78) The Commissioner approved plans showing property to be acquired on Lower Ferry Road and Parkway Avenue (or Scotch Road) for highway purposes incidental to the construction of the new State Highway Office Building at Fernwood, and authorized acquisition of the properties as indicated thereon to be acquired for highway purposes. The Commissioner further authorized the transfer of $30,000.00 from the Right of Way Account of Route 54, Section (Route 43) to Second Avenue, (Hammonton), to cover the cost.'
"7. On August 17, 1949, the State Highway Commissioner took the following action as recorded in the minutes of the meeting of the Commissioner and his staff as follows:
"' Right of Way -- Fernwood Station
"'(Item 12-A) The Commissioner directed that condemnation proceedings be instituted for acquisition of the property of James A. Hester, Parcel 4, required for highway purposes on Parkway Avenue or Scotch Road for the Fernwood Station of the State Highway Department.'
"8. On or about November 7, 1949, the State Highway Commissioner made application to the Honorable Ralph J. Smalley, Judge of the Superior Court of New Jersey, and filed his petition entitled
"'In the matter of the petition of the State Highway Commissioner of the State of New Jersey for condemnation of the lands of James A. Hester, unmarried,'
and on the twenty-first day of April, 1950, the Honorable Ralph J. Smalley entered an order appointing commissioners in said proceeding but no date has yet been fixed for a hearing. Said petition and ...