Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D. Conford, J.A.D. (dissenting).
William C. Currie appeals from the entry of summary judgment and an order for possession in favor of the plaintiff. Under N.J.S.A. 27:12 B -1 et seq. , the plaintiff, New Jersey Highway Authority, is charged with the responsibility of building the Garden State Parkway, N.J.S.A. 27:12 B -20. By appropriate resolution, it determined that it was necessary to take the property of the defendant, comprising approximately 34.67 acres of meadowland and islands in Great Egg Harbor Bay, New Jersey, and pursuant to R.S. 20:1-1 et seq. , sought the appointment of commissioners for condemnation of the property.
The plaintiff moved for summary judgment supported by the affidavit of Oliver S. Deakin, Parkway Design and Construction Engineer on the staff of the Chief Engineer of the New Jersey Highway Authority, stating that on his recommendation the Chief Engineer had approved the taking of the entire fee of the property of the defendant rather than a lesser estate. His reason was that all the land in question would be utilized for parkway purposes, including protection of the causeway which is part of the parkway, probable use of the land for recreational areas with parking, fishing, swimming and boating facilities, and its use for maintenance purposes, including storage areas. Additionally, the taking of the entire fee would ensure that there would be no unsightly structures upon the land.
The defendant opposed only the taking of any part of his land not necessary for the actual highway right-of-way. His affidavit states that he was informed that the purpose of taking the entire fee was for the construction contractor's use of the land as a "spoil area" in connection with dredging necessary in the construction of the causeway.
On the motion for summary judgment, the trial court determined that palpably there was no genuine issue as to any material fact, and ordered judgment for the plaintiff, directing that the condemnation proceed in accordance with law. The plaintiff having petitioned for immediate possession, the court also entered judgment for possession.
At the outset it is necessary to determine whether the pleadings and affidavits raise a genuine issue as to any material fact, R.R. 4:58-1 et seq. The defendant argues that by entering summary judgment for the plaintiff the trial court deprived him of the right to show that all of his land was not needed for parkway purposes and that the plaintiff abused its discretion in preempting the entire fee of the defendant. In Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954), it is stated that summary judgment:
"* * * is designed to provide a prompt, businesslike and inexpensive method of disposing of any cause which a discriminating search of the merits in the pleadings, depositions and admissions on file, together with the affidavits submitted on the motion clearly shows not to present any genuine issue of material fact requiring disposition at a trial. * * *"
The defendant does not take issue with the plaintiff's assertion that the land will be used for parkway purposes, including protection of the causeway, maintenance, storage and recreational facilities, and insurance against unsightly structures, but he resists its acquisition for use as a "spoil area." Therefore, the only issue to be determined is whether the taking of this land for such purposes is a palpable abuse of statutory discretion -- a proper issue for disposition by summary judgment. City of Newark v. New Jersey Turnpike Authority , 7 N.J. 377 (1951); Judson v. Peoples Bank & Trust Co. of Westfield, supra.
The area encompassed by the appeal before us concerns the taking of private property by the sovereign under its power of eminent domain. The right of eminent domain is an inseparable attribute of sovereignty, an inherent power founded on the primary duty of a government to serve the
common need and to advance the general welfare. National Docks R.R. Co. v. Central R.R. Co. , 32 N.J. Eq. 755 (E. & A. 1880); Ryan v. Housing Authority of City of Newark , 125 N.J.L. 336 (Sup. Ct. 1940); Bergen County Sewer Authority v. Borough of Little Ferry , 5 N.J. 548 (1950); Abbott v. Beth Israel Cemetery Ass'n. of Woodbridge , 13 N.J. 528 (1953); Valentine v. Lamont , 25 N.J. Super. 342 (App. Div. 1953), affirmed 13 N.J. 569 (1954), certiorari denied 347 U.S. 966, 74 S. Ct. 776, 98 L. Ed. 1108 (1954); Texas Pipe Line Co. v. Snelbaker , 30 N.J. Super. 171 (Law. Div. 1954), affirmed 33 N.J. Super. 11 (App. Div. 1954); 1 Nichols on Eminent Domain (3 d ed. 1950), § 1.14 et seq.
The New Jersey Highway Authority by the enactment of N.J.S.A. 27:12 B -1 et seq. is authorized to "* * * acquire, construct, maintain, repair and operate highway projects * * *." Under N.J.S.A. 27:12 B -3(d), the Authority is given the power in its discretion to acquire such property for "highway projects" as it deems necessary for the construction and operation of its projects. N.J.S.A. 27:12 B -3(d) reads in part as follows:
"(d) 'Project' or 'highway project' means any express highway, superhighway or motorway * * * acquired or to be acquired * * * together with such adjoining park or recreational areas and facilities as the Authority, with the concurrence of the Department of Conservation and Economic Development, shall find to be necessary and desirable to promote the public health and welfare and feasible for development pursuant to this act, and shall include but not be limited to all bridges, * * * service areas, service stations, service facilities, communications facilities, and administration, storage and other buildings which the Authority may deem necessary for the operation of such project, together with all property, rights, easements and interests which may be acquired by the Authority for the construction or the operation of such project."
In those cases where the Authority is unable to acquire the necessary land by agreement with the owner, the provisions of R.S. 20:1-1 et seq. are followed. Condemnation of either the fee, or a lesser interest, is limited to lands reasonably necessary for the achievement of the statutory purpose.
New Jersey Turnpike Authority v. Washington Tp. , 16 N.J. 38 (1954).
The defendant argues that here the uses to which the land will be put are unreasonable. In our opinion the Authority, in failing to indicate except generally in the resolution or petition for possession the purpose to which the land would be put, did not follow what we believe to be the better practice. This court can look only to the plaintiff's pleadings and affidavit to find the specific uses for which the Authority seeks to condemn the disputed land. Better practice would have been to include in the Authority's resolution and in the declaration of taking the intended specific uses of the land.
In City of Newark v. New Jersey Turnpike Authority, supra , it was held that:
"So long as such a corporation (Turnpike or Highway Authority) operates within the orbit of its statutory authority, it is well established that the courts will not interfere with the manner in which it exercises its power in the absence of bad faith, fraud, corruption, manifest oppression or palpable abuse of discretion. * * * The City clearly failed to raise any real question as to whether the Authority's plans were so far from right as to be a manifest abuse of discretion and under Rule 3:56-3 it was therefore entirely proper for the court below to have granted the defendant's motion for summary judgment."
"The exercise of such discretion will not be upset by the courts in the absence of an affirmative showing of fraud, bad faith or manifest abuse." City of Trenton v. Lenzner , 16 N.J. 465 (1954), certiorari denied 348 U.S. 972, 75 S. Ct. 534, 99 L. Ed. (1955); Town of Bloomfield v. New Jersey Highway Authority , 18 N.J. 237. Here, there is not only no affirmative showing of fraud or bad faith; neither is even charged. In the absence of any evidence to the contrary, the good faith of public officials is to be ...