This case is submitted to the court under the rules, a jury having been waived. It is an action for possession of land, under Rule 3:74-1.
Plaintiff, Alta Valentine, brings her action against the defendants, Lester Lamont and Marion Lamont, his wife, for possession of the premises located at No. 15 Dick Street, Jersey City. Defendants, Lester Lamont and Marion Lamont, moved for leave to make the Board of Education of Jersey City a party to this action. Application was also made for an order permitting Anthony J. Lamont, the holder of a first mortgage on the premises in question, to intervene.
Leave was granted making the said board a party and the said Anthony J. Lamont a party as intervener.
The court finds the facts to be substantially as set forth in the pretrial order. The facts therein contained are not supplemented by any oral testimony or any further exhibits, all the exhibits having been referred to in said order.
In chronological order, the events are as follows:
(1) February 28, 1890. Emma Maslin received title to lands known as No. 15 Dick Street, Jersey City, N.J., by deed dated February 28, 1890, recorded in Book 500 of Deeds, Hudson County Register's Office, page 32.
(2) July 19, 1922. The Board of Education of the City of Jersey City instituted condemnation proceedings in the Circuit Court of Hudson County, under L. 1900, c. 53, page 79, to acquire and take said land for the enlargement of School No. 11 in said city. The said Emma Maslin was a party in this proceeding.
(3) The said Emma Maslin was awarded the sum of $13,600 for the taking of her lands for said enlargement of School No. 11 and the said amount of $13,600 was paid to her.
(4) May 27, 1928, said Emma Maslin died intestate, a widow. Her only surviving heir was Mary L. Stinard. Said Mary L. Stindard died intestate January 22, 1934, leaving three surviving heirs: Percy L. Stinard, a son; Alta Valentine, the plaintiff, a granddaughter; and Rutherford L. Stinard, a grandson.
(5) Percy L. Stinard has not been heard from in seven years and his whereabouts or existence are unknown. Rutherford L. Stinard, the grandson, resides in New York.
(6) September 6, 1945. The Board of Education of Jersey City adopted a resolution wherein it was recognized that the lands in question were no longer needed for school purposes and provided that a public sale be held under R.S. 18:5-25 and R.S. 18:5-26.
(7) March 21, 1946. Said board, by resolution, ratified the public sale on March 14, 1946, of said premises to the defendants, Lester A. Lamont and Marion Lamont, his wife.
(8) By deed, dated April 9, 1946, said board conveyed premises in question to defendants, Lester Lamont and Marion Lamont, and the said deed is duly recorded. This was by bargain and sale deed, confirmatory of the public sale aforesaid.
On January 14, 1952, the plaintiff filed a complaint in the present suit.
It is unnecessary in this case to enter upon any lengthy discussion of the ancient right of eminent domain. It is generally conceded that it is an attribute of sovereignty and belongs to the state, and to the state alone. It exists independent of constitutional mandate, and it existed long prior to any known constitution. It is, however, a dormant right lodged in the sovereign people until legislative action points out the occasions, the modes, and the agencies for its exercise. Lazarus v. Morris , 212 Pa. 128, 61 A. 815 (Sup. Ct. 1905).
The right of an individual to the ownership of property must, of necessity, bend to the requirements of public use and so the right of eminent domain had its origin, but no right to take private property for a private use has ever existed. The use must be a public use, and the Constitutions, both State and Federal, support this, and have added further the limitation that private property may not be taken even for a public use without just compensation. United State Constitution, Fifth Amendment; New Jersey Constitution , 1947, Art. IV, sec. VI, par. 3.
Having in mind that private ownership of property must give way to a definite public need or a desire to subject that property to a public use, but never forgetting for an instant that the right to own and to retain property is one of the most cherished and sacred rights of a free man, obtained at a cost of centuries of toil, bloodshed and strife, the courts have rather uniformly considered that statutes providing the right of eminent domain should be strictly construed. Manda v. Orange , 75 N.J.L. 251 (Sup. Ct. 1907); Clark v. Coburn , 108 Me. 26, 78 A. 1107 (Sup. Ct. 1911); Conners v. New
Haven , 101 Conn. 191, 125 A. 375 (Sup. Ct. 1924); Reed v. Winona , 100 Minn. 167, 110 N.W. 1119 (Sup. Ct. Minn. 1907); Smith v. Minneapolis , 112 Minn. 446, 128 N.W. 819 (Sup. Ct. Minn. 1910); People ex rel. Washburn v. Gloversville , 128 App. Div. 44, 112 N.Y.S. 387 (App. Div. 1908).
It is a well established rule in New Jersey that the quality of interest in land obtained by a municipality under the power of eminent domain is that which the statute conferring the power authorizes the municipality to acquire. I mean to say that the Eminent Domain Act empowers the various agencies to take all the right, title and interest of the owner if necessary, otherwise only so much of the right, title and interest as may be necessary to the public use authorized by statute. Summerill v. Hunt , 25 N.J. Misc. 498, 55 A. 2 d 333 (Sup. Ct. 1947); Carroll v. Newark , 108 N.J.L. 323 (E. & A. 1932); Frelinghuysen v. State Highway Comm. , 107 N.J.L. 218, affirmed 108 N.J.L. 403 (E. & A. 1932); Wolf v. State Highway Comm. , 10 N.J. Misc. 317 (Sup. Ct. 1932).
In this State, it has been held that even the Legislature without express authority from the Constitution cannot enact legislation which would change easements acquired by condemnation proceedings, into a fee simple absolute. Holcombe v. Western Union , 109 N.J.L. 551 (E. & A. 1932); L. 1930, c.c. 191, 241.
It is rather interesting to note that express authority for the taking of a fee simple absolute has been absent from the prior 1844 New Jersey Constitution, but that the 1947 Constitution does state that any agency or political subdivision "may be authorized by law to take or otherwise acquire a fee simple absolute or any lesser interest." New Jersey Constitution of 1947, Art. IV, sec. VI, par. 3.
This express authorization, it seems to this court, was placed therein to clarify a situation which has plagued our courts, and the courts of other jurisdictions, for years. There can be no doubt that today the accepted rule is that a fee simple absolute may be acquired. However, the immediate
problem before this court is: What was the status of the law in 1922 when the condemnation ...