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Township of Dover v. Kassenoff

Decided: November 3, 1955.

TOWNSHIP OF DOVER IN THE COUNTY OF OCEAN, PLAINTIFF-RESPONDENT,
v.
MAURICE KASSENOFF AND MARILYN KASSENOFF, HIS WIFE, DEFENDANTS-APPELLANTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

On motion for summary judgment the Law Division sustained the authority of the township to condemn the lands in question for use as a place of disposal of garbage, rubbish and waste materials as part of the municipal plan for collection and disposition thereof. The property owners now seek a review of that determination.

The facts involved are not in dispute. The Kassenoffs are owners of a 60-acre tract of land in Dover Township. The governing body decided to acquire it for "land fill disposition of garbage, rubbish and waste materials." Acquisition by purchase not being feasible, this condemnation proceeding was instituted.

The complaint alleged R.S. 40:63-43 as the statutory authority for the action. However, that section is plainly inapplicable and was disregarded by the trial court who decided the merits of the controversy on the basis of the statutes which are in fact controlling. Cf. R.R. 4:55-4.

The property owners contend that the right of a municipality to condemn land for the purpose asserted here is limited and controlled by the statutory scheme represented by R.S. 40:66-3, and as so limited permits only the acquisition by condemnation of unimproved lowlands.

R.S. 40:66-3 provides:

"Every municipality may acquire, by purchase, lease or condemnation, unimproved lowlands , within or without the municipality, to be used for the deposit of ashes or other indestructible waste and refuse matter of the municipality, but no such lands shall be acquired or used for such purpose outside the limits of the municipality, without the consent of the governing body and of the board of health of the municipality wherein such lands are situated." [Emphasis ours]

Plainly that enactment authorizes the condemnation only of unimproved lowlands and only for the deposit of ashes or other indestructible waste and refuse matter. It is

conceded that the appellants' property is not unimproved lowland. Moreover, the intended use is not limited to the deposit of indestructible refuse matter; the purpose is general dumping of garbage, rubbish and waste materials. Consequently the taking of the acreage cannot be sanctioned unless another font of power is in existence.

It must be recognized, of course, that municipalities are of statutory origin and that their field of operation is circumscribed by the authority granted to them by the Legislature. The judicial appraisal of such authority is required by Art. IV, ยง VII, par. 11, of the Constitution of 1947 to be liberal, and express grants of power are deemed to include "those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto." Fred v. Mayor and Council, Old Tappan Borough , 10 N.J. 515 (1952); Marangi Bros., Inc., v. Board of Com'rs of Village of Ridgewood , 33 N.J. Super. 294 (App. Div. 1954); Kirsch Holding Co. v. Borough of Manasquan , 24 N.J. Super. 91 (App. Div. 1952); R.S. 40:42-4.

Our search, then, is for express or implied statutory sanction for the type condemnation sought to be accomplished by the present proceeding. In this connection we note immediately a pertinent provision of the Home Rule Act of 1917 (L. 1917, c. 152), R.S. 40:60-2:

"Every municipality may acquire by * * * condemnation any real estate * * * either within or without the municipality, * * *, which its governing body shall decide to be necessary or useful for the proper exercise of any power conferred upon the ...


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