On appeal from Superior Court, Law Division.
For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Burling. For affirmance -- Justices Wachenfeld, Jacobs and Brennan. The opinion of the court was delivered by Burling, J.
[20 NJ Page 575] The Township of Weehawken instituted condemnation proceedings in the Superior Court, Law Division against certain land owned by the Erie Railroad Company. Erie, and other defendants who have leasehold and mortgage interests in the property, challenged Weehawken's right to condemn by responding to an order to
show cause. Following entry of an interlocutory judgment favoring Weehawken the defendants sought and obtained leave to appeal to the Superior Court, Appellate Division, and we certified the cause prior to an appellate review by that court.
Weehawken is located in Hudson County and has a population of some 14,500 inhabitants. It parallels the Hudson River and accommodates the New Jersey entrance to the Lincoln Tunnel.
Erie owns and operates an interstate railroad for the transportation of freight and passengers between Jersey City and Chicago, Illinois and intermediate points. It has two waterfront terminals in New Jersey, one in Jersey City which accommodates both freight and passenger traffic, and the other in Weehawken which is used solely for transshipment of freight. Erie's Weehawken terminal lies easterly of Weehawken proper, paralleling and between Hudson Boulevard (a main vehicular artery in Weehawken) and the Hudson River. The terminal is divided into two parts by the right-of-way of the New Jersey Junction Railroad which runs in a northerly and southerly direction. The easterly segment of Erie's terminal is a completely developed water port facility. The westerly segment borders Hudson Boulevard and certain portions thereof are used by Erie for the transshipment of freight from railroad cars to trucks and vice versa. Other portions are leased by Erie.
The northern portion of the westerly segment of Erie's property is proximate to the Lincoln Tunnel entrance in Weehawken. In 1938 the Port of New York Authority, in order to accommodate traffic from the upper level of the Palisades to the mouth of the Lincoln Tunnel, acquired several parcels of Erie's real estate and constructed an elevated vehicular approach to the tunnel in the shape of a helix. This structure worked to sever the westerly segment of Erie's terminal facilities, but inasmuch as the helix is elevated Erie retained the right to cross the support property with railroad tracks and thus the potential use of the property north of the helix for terminal purposes was not destroyed.
The tract thus severed is bordered on the east and south by the semi-circular sweep of the elevated helix, on the west by Hudson Boulevard, and on the north by land of Erie presently under condemnation to the Port of New York Authority for an administration building. It has an area of approximately five acres. The Pennsylvania Railroad Company owns a rectangular plot extending from the easterly border to the center of the tract which is used as a tunnel shaft. The land lying to the north of a line running from the Pennsylvania Railroad's tunnel shaft west to Hudson Boulevard has been designated as Parcel B by the parties. The land lying to the south of this line has been termed Parcel A. Weehawken seeks to acquire both parcels.
By virtue of the construction of the third tube of the Lincoln Tunnel Weehawken is losing certain recreational facilities. A controversy between Weehawken and the Port of New York Authority was apparently engendered by this loss, resulting in an agreement whereby Weehawken was to acquire Parcels A and B from Erie by purchase or condemnation for recreational and parking facilities and the Port Authority would sustain the cost of the project. This understanding was reached in October of 1953.
Prior to this time, and in January 1953, Erie commenced negotiations with a trucking firm concerning the economic feasibility of constructing a facility whereby newsprint and other merchandise might be transshipped from Erie's railroad cars, loaded into trucks and expeditiously carried into New York city via the Lincoln Tunnel. It is sufficient at this time to state that by August 1953 these discussions materialized to the point that Parcels A and B were selected to accommodate the proposed facility.
In January 1954 Erie learned of Weehawken's plans. A conference between municipal and railroad representatives took place. Erie was of the opinion that the land in question would suffice both the railroad's design and that of Weehawken, but the township considered the entirety to be required for municipal purposes. Although it appears
that Erie was prepared to construct the facility its officials decided to postpone any steps in that direction until the entire matter might be determined pursuant to a condemnation proceeding.
Weehawken, having failed to acquire the tract by purchase, instituted the anticipated action in the fall of 1954. Seeking to acquire Parcel A for a Little League baseball field and grandstand and several other recreational facilities, it invoked the statutory authority of R.S. 40:61-1. The design for Parcel B was a parking area which would accommodate the automobile parking requirements of those attending the recreational area and in addition would serve residents and nonresidents who parked their automobiles in Weehawken and used bus transportation to reach New York City. Authority for this acquisition was grounded in R.S. 40:60-25.1. The condemnation proceeding was instituted pursuant to the procedural provisions of R.S. 20:1-1 et seq.
Erie resisted the municipal acquisition upon two grounds -- first, because Parcels A and B are being held for a public use and hence are not subject to acquisition under a general power of condemnation, and secondly, that appropriation of Parcel B for a municipal parking facility under R.S. 40:60-25.1 would work a deprivation of property repugnant to constitutional safeguards ...