On appeal from the Superior Court, Law Division, whose opinion is reported in 20 N.J. Super. 454 (1952).
Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
The basic question for determination on this appeal is the nature of the title acquired by the Board of Education of the City of Jersey City when it condemned the property in question for school purposes in 1922. The Law Division concluded that the board had acquired a fee simple absolute from plaintiff's ancestor, 20 N.J. Super. 454 (1952). We agree.
On July 19, 1922 the Board of Education of Jersey City instituted condemnation proceedings pursuant to L. 1903 (2 d sp. sess.) c. 1, sec. 47, as amended by L. 1922, c. 226, sec. 1 (now R.S. 18:6-24), and in conformity with the Eminent Domain Act (Revision of 1900) (now R.S. 20:1-1 et seq.), to acquire title to 15 Dick Street, Jersey City, and other adjacent properties, for the purpose of enlarging No. 11 School. Emma Maslin was the owner of 15 Dick Street, a one-family frame dwelling which still stands. Commissioners in condemnation were appointed and fixed the value of the Maslin property at $13,600. After a hearing duly held, the commissioners' report was confirmed and the board of education paid Mrs. Maslin $13,600 as the fair market value for her property. She took no appeal.
The properties needed for enlarging the school were then occupied by monthly tenants. The board continued to collect rentals through the years 1922 to 1945, paid real estate taxes and water charges to the City of Jersey City, and bore the
expense of insurance, maintenance and repair of the properties. During that entire period of time the board assumed and exercised complete control and dominion of the properties.
Mrs. Maslin died intestate on May 27, 1928, leaving Mary L. Stinard as her only surviving heir. Mrs. Stinard died intestate on January 22, 1934, leaving three surviving heirs: her son Percy, her granddaughter who is the plaintiff, and a grandson Rutherford L. Stinard. The whereabouts or existence of Percy are unknown, and Rutherford resides in New York. The fact that these two heirs were not joined as parties plaintiff or defendant is not important in view of the decision we reach.
In September 1945 the board of education adopted a resolution declaring that the various parcels acquired by condemnation were no longer needed for school purposes, and directed that they be sold at public sale under R.S. 18:5-25 and 26. The minimum sales price for 15 Dick Street was fixed at $5,900. Defendant Lester Lamont was the successful bidder at the public sale, having bid $5,900. On March 21, 1946 the board adopted a resolution ratifying the public sale. Thereafter, on April 9, 1946 the board executed and delivered a bargain and sale deed conveying the said premises to Lester Lamont and Marion, his wife, for $5,900. Intervenor Anthony J. Lamont holds a $4,000 first (purchase money) mortgage executed by the Lamonts on April 15, 1946.
At no time during the period from 1922 to 1946 did plaintiff or her predecessors in title ever dispute the possession or title of the board of education. The same is true as to plaintiffs' possession or title from April 9, 1946 to the institution of this action. It was not until the complaint was filed on January 11, 1952 that anyone made any claim that the board had acquired no greater estate than an easement or fee simple determinable in 15 Dick Street by virtue of the 1922 condemnation proceedings.
The right of eminent domain is "an inseparable attribute of sovereignty -- an inherent power founded on the
primary duty of government to serve the common need and advance the general welfare." Bergen County Sewer Authority v. Borough of Little Ferry , 5 N.J. 548, 552 (1950); Ryan v. Housing Authority of Newark , 125 N.J.L. 336, 340 (Sup. Ct. 1940). The power to take private property for public use goes back perhaps as far as Roman times. 1 Annals of Tacitus 75. The term "eminent domain" (" dominium eminens ") seems to have originated with Grotius, who declared that the state or he who acts for it may use and even alienate and destroy the property of its subjects for the ends of public utility, but added that "when this is done the state is bound to make good the loss to those who lose their property." 3 De Jure Belli et Pacis, c. 20.
The power of eminent domain does not require recognition by constitutional provision; it is primarily an absolute and unlimited power, and theoretically exists in this form in the ultimate source of authority in every organized society. National Docks R. Co. v. Central R. Co. , 32 N.J. Eq. 755, 763-4 (E. & A. 1880). Accordingly, positive assertion of limitations upon the power is required. That requirement is met by provisions such as are found in most state constitutions relating to the taking of property by eminent domain. It should be emphasized that such provisions neither directly nor indirectly grant the power of eminent domain, but are simple limitations on the power already in existence which would otherwise be unlimited. 1 Nichols on Eminent Domain (3 d ed. 1950), sec. 1.14, pp. 8 et seq.
The history of eminent domain in the American Colonies seems to sustain the doctrine that "the power of eminent domain, as it exists untrammeled by constitutional limitations, extends to the taking of any property within the jurisdiction of the state for the public good, subject only to the moral obligation of making compensation." Idem, sec. 1.22, p. 46. When the Colonies broke away from the Crown, each became a sovereign state in its own right, with absolute control over persons and property within its jurisdiction. Each became vested with the general power of eminent domain. The power could be exercised directly by the legislature,
or could be delegated to municipalities or other governmental subdivisions. National Docks R. Co. v. Central R. Co. , above, at p. 764. The legislature could also grant the power of eminent domain to public corporations, such as school districts or boards of education. Cf. Wendel v. Board of Education of Hoboken , 75 N.J.L. 70 (Sup. Ct. 1907), reversed on other grounds, 76 N.J.L. 499 (E. & A. 1908).
Under the terms of the typical constitutional provision private property cannot be taken for public use without making just compensation. Such provision is contained in the Fifth Amendment to the United States Constitution as a limitation on the powers of the Federal Government. The same provision, variously worded, appears in the constitutions of all but one of the states. The first New Jersey Constitution, adopted in 1776, contained no express restrictions on the taking of private property for public use. However, it was early recognized that the power of the Legislature in the area of eminent domain was not omnipotent; we find the dictum in Attorney-General v. Stevens , 1 N.J. Eq. 369 (Ch. 1831), that the Legislature "cannot authorize private property to be taken for public purposes, without providing for a just remuneration." And in Scudder v. Trenton Delaware Falls Co. , 1 N.J. Eq. 694 (Ch. 1832), the Chancellor observed that although the right of eminent domain was one appertaining to sovereignty -- one which the state might freely exercise on all proper occasions -- yet private property was not to be taken for private use. "The legislature has no right to take the property of one man and give it to another, even upon compensation being made." The principles underlying the power of eminent domain, and the limitations upon the exercise thereof, were comprehensively stated by Justice Dayton in Sinnickson v. Johnson , 17 N.J.L. 129 (Sup. Ct. 1839), five years before the adoption of the Constitution of 1844. That Constitution provided, in Art. I, par. 16, that:
"Private property shall not be taken for public use, without just compensation; but land may be taken for public highways, as heretofore, until the legislature shall direct compensation to be made."
Such was the constitutional provision at the time of the 1922 condemnation proceedings under consideration.
Plaintiff's claim is that the Board of Education of Jersey City took only an easement or at best a fee simple determinable by the condemnation, and that when it declared the property in question no longer needed for school purposes and sold and conveyed it to the Lamonts, there was a reverter and plaintiff was entitled to possession of the land. On the other hand, the Lamonts, together with the intervening mortgagee and the board of education, insist that the board acquired a fee simple absolute.
The 1922 condemnation proceedings, as already mentioned, were instituted pursuant to the provisions of L. 1903 (2 d sp. sess.) c. 1, sec. 47, as amended by L. 1922, c. ...