On May 28, 1956 this matter came on before me on motion for determination of claims to the fund on deposit and an order for distribution. The fund represents the amount of the judgment entered on a jury verdict on April 3, 1956, plus interest on the excess of the award over the initial deposit from the date thereof, less certain credits. The only issue is whether the Town of Bloomfield may maintain against the fund a claim for local taxes for the years 1954, 1955 and 1956. That claim is rested upon factual assertions which are disputed, and since the parties were not then prepared to adduce testimony through witnesses, Delancey & Stockton Corp. v. Reliable Improvement Company , 134 N.J. Eq. 71 (E. & A. 1943), the matter was continued until June 8, 1956, with the direction that the Town of Bloomfield submit a brief concerning the legal questions presented by its claim. I stated that if I should conclude that the town's claim is legally untenable, even assuming the accuracy of the factual assertions, I would, if possible, so notify counsel before June 8.
I have considered the brief filed by the town and am satisfied that, if the facts alleged were established, the town nevertheless would not be entitled to claim against the fund.
On November 23, 1953 plaintiff filed its complaint and on November 24, 1953 its declaration of taking wherein it stated that the property was taken under chapter 16 of the Laws of 1952, N.J.S.A. 27:12 B -1 et seq.; that upon the filing of the declaration it deposited with the Clerk of the Superior Court the sum estimated to be just compensation; and that it "does hereby, upon the filing of this Declaration take possession of" the premises. Plaintiff sought to acquire a fee simple absolute. The order appointing the commissioners directed them to fix the compensation to be paid "as of the date of the commencement of this action," and the pretrial order stated the issue to be the market value of the property on November 23, 1953, the date of the filing of the complaint. For present purposes it is of no moment whether the crucial date is the date of the filing of the complaint or the date of the declaration of taking and deposit of the estimated amount of the compensation, although I believe the latter date controls.
The town bases its claim upon two factual contentions: (1) that plaintiff has not in fact used the condemned property for the purposes for which it was authorized by law to acquire it, and (2) subsequent to the commencement of the proceedings, to wit, in May 1955, a deed was delivered by the owner of the fee to plaintiff and recorded. In response to the town's offer to prove the foregoing, plaintiff countered with an offer to prove that the property was properly acquired; that a reasonable time has not yet expired for a determination by the plaintiff to use or dispose of the property; and that the deed was taken pursuant to a tentative plan of settlement which failed of consummation because of the encumbrances against the property, and hence the condemnation proceedings went to a conclusion as if a voluntary arrangement had never been attempted.
N.J.S.A. 27:12 B -7 provides that upon the filing of the complaint and a declaration of taking and the deposit of the estimated just compensation plaintiff shall be entitled to exclusive possession of the property. That section further provides that if the amount of the award shall exceed the
deposit, the person to whom the award is payable shall be entitled to recover the difference between the deposit and the award with interest at 6% from the date of the deposit. The same section further provides that plaintiff shall not abandon any condemnation proceeding subsequent to the date upon which it has taken possession.
It seems clear that the controlling date is the date of the deposit upon which the right to possession depends and from which the person entitled to the award receives an allowance of interest with respect to the excess of the award over the deposit. The statute does not explicitly fix the date of passage of title, but its provisions point unmistakably to the date of the deposit. This conclusion is consonant with Delancey & Stockton Corp. v. Reliable Improvement Company, supra.
The town urges the controlling date is the date of the deposit of the excess of the award over the original deposit, but manifestly this cannot be so. The statutory theme is that the operative date as between the parties to the condemnation be the day upon which the owner's right to possession is terminated by the initial deposit, notwithstanding that plaintiff's estimate of just compensation should prove to be low. It is unnecessary to resort to the doctrine of relation back discussed in Milmar Estate, Inc., v. Borough of Fort Lee , 36 N.J. Super. 241 (App. Div. 1955).
Since plaintiff was entitled to receive a fee simple absolute, free and clear of liens and encumbrances, it was entitled to have discharged or paid out of the award all liens and encumbrances as of the date of the taking and deposit.
Land taxes become liens on the first day of January of the year for which they are assessed. N.J.S.A. 54:5-6. Accordingly, none of the taxes here claimed constituted liens on November 24, 1953, or on ...