On appeal from the Superior Court, Appellate Division, whose opinion is reported in 25 N.J. Super. 342.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of the Appellate Division which affirmed a judgment of the Superior Court, Law Division, which in turn had dismissed the appellant's complaint in ejectment and determined that the interveners-respondents held a fee simple absolute title to the premises in question by a deed of conveyance to them, dated April 19, 1946, from the respondent, the Board of Education of Jersey City, Hudson County, a body corporate.
The action was instituted to test the validity of the sale of such premises by the board of education to the interveners-respondents which property the board had acquired by condemnation in 1922. The theory of the action in ejectment was that a right of reverter remained vested in the appellant because the Constitution (1844) and the applicable statutes merely permitted the taking of a fee simple determinable by eminent domain and not a fee simple absolute.
In 1922 the respondent board exercised its right of eminent domain, pursuant to L. 1903 (2 nd Sp. Sess.), c. 1, sec. 49, as amended by L. 1922, c. 226, sec. 1 (now R.S. 18:6-16, 18:6-24), and in conformity with the Eminent Domain Act, Revision of 1900 (now R.S. 20:1-1 et seq.), to acquire the said property from the appellant's predecessor in title. Condemnation commissioners were appointed who fixed the fair market value of the entire property at $13,600. From this award no appeal was taken.
The board took title to the property and for 24 years the title and right of possession of the board was never disputed by the appellant or her predecessor in title, nor was any claim made that the board had acquired no greater estate than an easement or fee simple determinable, or that a dominant estate was held by the appellant and her predecessors in title and only a servient estate held by the respondent board of education. This despite the fact that the property was not used for school purposes but was occupied by monthly tenants, that the board received the monthly rentals, paid the real estate and water taxes on the properties and
assumed complete control and dominion of the properties as sole owner thereof.
In September 1945 the board adopted two resolutions pursuant to R.S. 18:5-24, 25 and 26 that (1) the property was no longer needed for school purposes and that (2) it be sold pursuant to statute at public auction. A minimum sales price of $5,900 was fixed and the property was purchased by the defendant-respondent Lester Lamont. The intervener-respondent Anthony Lamont is the present holder of a mortgage of $4,000 on the property as security for the advancement of such sum to Lester Lamont and his wife at the time of the sale.
The appellant concedes the good faith of the board in acquiring the property for school purposes but challenges the right of the board to convey a fee simple absolute and instituted its action in ejectment.
Both the trial court and the Appellate Division in carefully reasoned opinions, 20 N.J. Super. 454 (1952), and 25 N.J. Super. 342 (1953), rejected the appellant's contentions as to the lack of legislative power and held that the fair market value of a fee simple absolute was the basis of the award made in the condemnation proceeding in 1922 and that a reasonable construction of the applicable statutes (now R.S. 18:6-16, 18:6-24 and 18:5-25, which are set forth at length in opinions below) clearly indicate a legislative intention to empower the board of education to take a fee simple absolute in property acquired for school purposes by eminent domain, R.S. 20:1-1 et seq. The appeal was taken to this court under Rule 1:2-1(a), now R.R. 1:2-1(a), on the ground that the Legislature was never vested with power, under the Constitution (1844), Art. I, par. 16, to enact laws to permit the acquisition of a fee simple absolute title by eminent domain.
The argument of the appellant presents the following questions:
1. Under the Constitution of the State of New Jersey (1844, as amended), Art. I, pars. 1 and 16, can the Legislature enact statutes whereby a board of ...