The opinion of the court was delivered by: WORTENDYKE
This condemnation proceeding was instituted in 1946 by the Federal Government. The subject of the condemnation was a portion of a County gravel-surfaced road in Middlesex County, New Jersey.
A jury trial was had and the jury returned a verdict for Middlesex County in the amount of $ 172,000. The Government now moves, pursuant to Fed.Rules Civ.Proc. rule 50, 28 U.S.C., to set aside the judgment entered upon the jury's verdict and to have judgment entered in accordance with a motion for a directed verdict made by the Government at the close of all of the evidence. In the alternative, the Government seeks a new trial pursuant to Rules 50 and 59. At the same time, the County moves for amendment of the present judgment so as to include interest upon the amount of the jury's award.
The general rule of damages in condemnation proceedings is that the owner is entitled to the full equivalent in money for the property taken. The usual measure employed is the fair market value of the property. Such measure is not appropriate, however, when a piece of road is the property taken for it cannot be said to have any market value, and yet the local government does sustain an actual monetary loss if, as a result of the exercise of the power of eminent domain, a substitute public way must be constructed. Consequently, the rule has developed that upon the condemnation of a public road, which the local government is required to replace, the loss is measured in terms of the cost of furnishing or constructing an appropriate substitute public facility. State of Washington v. United States, 9 Cir., 1954, 214 F.2d 33, certiorari denied 1954, 348 U.S. 862, 75 S. Ct. 86, 99 L. Ed. 679; United States v. State of Arkansas, 8 Cir., 1947, 164 F.2d 943; United States v. Des Moines County, Iowa, 8 Cir., 1945, 148 F.2d 448, certiorari denied 1945, 326 U.S. 743, 66 S. Ct. 56, 90 L. Ed. 444. It may be that a new road or highway is required, or it may be that a widening of certain existing facilities is sufficient.
If, however, no substitute facility is necessary, the law is well established that no compensation, except nominal damages, may be recovered. As stated succinctly in State of California v. United States, 9 Cir., 1948, 169 F.2d 914, 924:
'The overwhelming weight of modern authority is to the effect that a municipality, a county, a State, or other public entity is entitled to compensation for the taking of a street, road or other public highway only to the extent that, as a result of such taking, it is compelled to construct a substitute highway.' (Emphasis in original.)
To the same effect are State of Washington v. United States, 9 Cir., 1954, 214 F.2d 33, certiorari denied 1954, 348 U.S. 862, 75 S. Ct. 86, 99 L. Ed. 679; City of Fort Worth, Texas v. United States, 5 Cir., 1951, 188 F.2d 217; and United States v. City of New York, 2 Cir., 1948, 168 F.2d 387.
These rules of law seem sound and relatively simple when stated in the abstract. Their application to diverse factual situations does, however, engender complexities. With the network of highways and roads that exist today in many areas, it is seldom that the elimination of a single road makes the construction of another road absolutely essential. More often than not, alternate existing roads will enable vehicular traffic to reach desired destinations, though perhaps not as directly or conveniently as it would absent the condemnation. The resulting diversion may adversely affect the utility of the alternate roads by increasing the burden of traffic which they must bear. Consequently, any test based upon the necessity of substitute facilities must be tempered with considerations reaching beyond absolute necessity. Recognizing this to be so, the test has come to be treated as one of reasonable necessity under all the surrounding circumstances. State of Washington v. United States, 9 Cir., 1954, 214 F.2d 33, 40, certiorari denied 1954, 348 U.S. 862, 75 S. Ct. 86, 99 L. Ed. 679, quoting with approval the following language in United States v. Alderson, D.C.S.D.W.Va.1944, 53 F.Supp. 528, 530:
"The test is not what the State wants to build; not what the property owners want for their properties; and not what is the desirable thing to do. Both parties to this litigation would be very anxious to give these people the best roads possible. That would be the most desirable thing to do, but such is not the test. The question is, what is the reasonable thing under all the circumstances?"
'* * * the city was entitled to an award sufficient to provide such traffic facilities as were necessary to restore its entire adjacent system of such facilities to the same status of utility as was enjoyed prior to the taking; that nearby facilities were entitled to no weight other than such as might be proper to determine the extent to which their presence would withdraw traffic from the condemned highway even if it were still in use, or to the extent that, by improvement or betterment, they might properly be made to provide adequate substitute facilities; that the true test is not whether the substitute facilities already in existence will carry the traffic, diverted and non-diverted, but rather what compensation is necessary to enable the city to provide a facility that will carry the entire load in an equally adequate manner as would have been true had there been no condemnation; that it will not at all do to say that, in determining the cost of providing any necessary substitutes, an award in condemnation may be denied because there are already in existence other available routes which will in some fashion handle the traffic diverted by the condemnation; and that the cost of adequate substitute facilities to be so computed is proper whether such sum be more or less than the value of the street and the facilities taken. The opinion recognizes the duty of the municipality to provide for a necessary readjustment of its traffic facilities, and that the amount of compensation due it is the cost of the necessary substitute facilities.' (Emphasis supplied)
One other matter will bear exploration before turning to the facts of the instant case. As a general rule, the date of taking is controlling.
'A condemnation case involves a taking, as of a certain date, and the case is tried with the eyes of the court and jury fastened to the date of taking, and some short but reasonable period before or after the taking. The question in our case is -- was there a reasonable necessity as of July 1943, to replace the highway taken? If so, what was a reasonable substitute route as of that date?' State of Washington v. United States, 9 Cir., 1954, 214 F.2d 33, 47, certiorari denied 1954, 348 U.S. 862, 75 S. Ct. 86, 99 L. Ed. 679.
With this brief reference to the law, we may turn to the facts in the instant case, bearing in mind that the issue is whether, as a result of the taking by the Federal Government, there was a reasonable necessity for Middlesex County to construct a substitute public road. The ordinary difficulty of resolving such a factual issue is somewhat complicated by the fact that the taking occurred in the Spring of 1942 and the testimony of witnesses on matters crucial to the litigation was based upon recollection of occurrences which took place fourteen years ago. A few fundamental facts do, however, appear uncontroverted.
Prior to World War II, the Federal Government owned a tract of land in Raritan Township, Middlesex County, New Jersey, known as the Raritan Arsenal Reservation. The tract was bounded on the south by the Raritan River, on the north by Woodbridge Avenue and on the east and west by large areas of meadow lands. About nine months before Pearl Harbor, the Board of Chosen Freeholders of Middlesex County, after negotiations with the Works Progress Administration, adopted a resolution providing for the construction of a forty-foot black-top road, upon a right-of-way one hundred feet in width, running southeasterly across the meadow lands lying east and entirely outside of the Raritan Arsenal. The proposed road connected Woodbridge Avenue in the Bonhamton Section of Edison Township (formerly Raritan Township) with State Street in the Keasbey Section of Woodbridge Township. The proposed road was approximately two and one-half miles in length and was to be without intersections except that of Meadow Road which extended in a southerly direction from King George's Road to and across the proposed road. At the time the resolution was passed, vehicular traffic traveling between the points to be served by the proposed road was required to go by way of the Fords Section of Woodbridge Township and pass through the intersection of New Brunswick Avenue and King George's ...