On appeal from the Appellate Division of the Superior Court
For granting -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For denial -- Justice Heher. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J. (dissenting).
[13 NJ Page 386] On March 4, 1952 the defendant Buckeye Pipe Line Company, acting under R.S. 20:1-1
et seq. and R.S. 48:10-1, presented a petition to a judge of the Superior Court sitting as a legislative agent for the appointment of commissioners in the condemnation of a right of way for a pipeline through certain lands in Hunterdon County, of which the plaintiff Elden E. Cooley was one of the owners. An order was thereupon entered fixing the time and place for the hearing on the petition; notice of the order was served on the plaintiff pursuant to R.S. 20:1-3; and the petition and order were filed as required by R.S. 20:1-3. An order appointing condemnation commissioners was duly entered on March 21, 1952, without objection from the plaintiff landowner.
On April 9, 1952, pursuant to R.S. 20:1-10 the condemnation commissioners filed a report of their appraisal of the land and of the damages to be paid to the landowners by the defendant company. On May 8, 1952, the plaintiff landowner filed a notice of appeal from the commissioner's award and gave notice of a motion in the language of R.S. 20:1-16 "to frame the issue, to strike a jury, and to fix a date for the trial of the appeal." This appeal is now pending. Meanwhile the defendant pipe line company, after paying the amount of the commissioners' award into court, entered into possession of property pursuant to R.S. 20:1-12 and by September 20, 1952, completed the laying of its pipe line on the property, and since October 15, 1952 it has been using the pipe line for the transportation of petroleum products.
On January 22, 1953 the plaintiff landowner moved in the Law Division of the Superior Court to dismiss the petition for the appointment of commissioners and all proceedings subsequent thereto on the ground that the Law Division of the Superior Court lacked jurisdiction over the subject matter of the appeal from the commissioners' report on the grounds (1) that R.S. 48:10-1, on which the defendant's petition for the appointment of commissioners was partially based, was unconstitutional under both the New Jersey and the United States Constitutions as an undefined and unregulated delegation of power and authority to pipe line companies permitting the taking of property without due process
of law, and (2) that a foreign pipe company does not have the power of eminent domain in New Jersey.
The plaintiff's motion to dismiss was denied on January 30, 1953, and on February 5, 1953 he appealed from this denial of his motion to the Appellate Division of the Superior Court. That court dismissed his appeal on April 29, 1953. On May 8, 1953 the plaintiff appealed from this dismissal to the Supreme Court. The defendant pipe line company moved on June 4, 1953 to dismiss the appeal to this court but we reserved decision on its motion until the briefs on the appeal came in, so that we might examine them before hearing argument on the motion to dismiss the appeal.
The motion of the defendant pipe line company to dismiss the plaintiff property owner's appeal to this court from the decision of the Appellate Division must be granted on both procedural and substantive grounds.
The plaintiff is in error in concluding that he may move to attack the statutory proceedings under the condemnation statute at his convenience, in this case more than ten months after the entry of the order appointing commissioners, more than five months after the defendant pipe line took possession of the condemned property, more than four months after it had built its pipe line and more than three months after it had begun to use the pipe line. Although under the revised rules now in effect a direct appeal may be taken to the Appellate Division of the Superior Court, R.R. 4:88-7, an appropriate course at that time was to proceed under former Rule 3:81-2 and 3 (now R.R. 4:88-2 and 3) by a proceeding in lieu of prerogative writ. This he failed to do. He never filed a complaint as required by Rule 3:81-3 (now R.R. 4:88-3). Even if we might treat his motion in the Law Division of the Superior Court attacking the condemnation proceedings as a compliance with the rule, it came much too late, for under Rule 3:81-15(a) (now R.R. 4:88-15(b)(7)), proceedings to review an order of a judicial officer acting as a legislative agent must be commenced within 45 days from the entry of such order. Here the plaintiff's motion was filed more than ten months after the order appointing the condemnation commissioners.
There is nothing novel about the procedure set forth in the rules and now incorporated in the revised rules; it has been followed here for generations; see Bergen County Sewer Authority v. Little Ferry, 5 N.J. 548 (1950), cert. denied 344 U.S. 865, 73 S. Ct. 105 (1952). The novelty is the plaintiff's attempt to ...