Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The New Jersey Highway Authority, functioning pursuant to the statutory terms of chapter 16 of the Laws of 1952, instituted the present action on August 24, 1953 to acquire in fee simple by condemnation the 1.42 acres of lands with the buildings thereon of the defendants Arthur F. Wood and Helen A. Wood, his wife, situate in the Township of Matawan, Monmouth County.
The public use for which the acquisition of the premises was alleged to be reasonably necessary was the construction and maintenance of the "Garden State Parkway."
Except for some delay in surrendering to the Authority actual possession of the property, the condemnation action progressed regularly. The award of the commissioners was $16,700, from which the defendants prosecuted an appeal to the Law Division of this court where the jury resolved that the fair value of the property and incidental loss amounted to $15,000. A new trial was denied and the present appeal challenges the propriety of that denial and of the final judgment.
Our appellate consideration of the trial centers predominantly upon the admission in evidence of certain photographs of the interior of the dwelling house offered on behalf of the plaintiff. A prefatory disclosure of the background of the asserted error is necessary.
Following the filing of the complaint, the plaintiff on the same day filed with the Clerk of the County of Monmouth and with the clerk of this court a declaration of taking in conformity with the terms and provisions of N.J.S.A. 27:12 B -7, stating therein the estimated just compensation for the acquisition of the property to be $15,500 and made the requisite deposit. The defendants, however, refused to vacate and surrender actual possession of the premises to the plaintiff, and in consequence the plaintiff was obliged to petition the court for an order for possession. The court commanded the defendants to relinquish their occupancy of the dwelling 50 days from September 4, 1953. By consent the period was thereafter extended to 57 days.
The defendants declare that they discontinued their habitation of the house on October 31, 1953, but other testimony indicated that Mrs. Wood was observed in person on and about the property daily up to and including November 2, 1953. The plaintiff assumed possession of the dwelling house on November 3, 1953. The doors were locked, and upon forcibly entering the house, civil engineer Conlon observed that some parts of the interior appeared to have been maliciously damaged as if vandalized. He thereupon on the afternoon of that day photographed the then existing conditions. Those were the photographs offered and admitted in evidence at the instance of the plaintiff.
Mrs. Wood was antagonistic to the public appropriation of her home. It was made evident that she had withheld from the keys mailed to the plaintiff a key with which to enter the back door, and was also aware of the damage done to the fireplace, bathroom, and walls when interviewed on November 2, 1953.
It is not unlikely that the disclosure of the mischievous depreciation in the condition of the house in the circumstantial setting generated in the minds of the jurors an influential suspicion, if not an inference, that in anger the defendants, or one of them, had caused the damage, but the inquiry arises whether the state and condition of the
building on November 3, 1953, the date on which the plaintiff acquired actual possession, unless it reflected in some degree the condition existing on August 24, 1953, was a relevant subject of proof. As previously ...