On certified appeal from the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.
[23 NJ Page 132] This is an appeal from the judgment of the Appellate Division of the Superior Court unanimously
affirming the order of the Law Division which in turn had dismissed for lack of prosecution the appeal of John E. Cooley, a landowner, from an award of condemnation commissioners. We granted the landowner's petition for certification, 22 N.J. 223 (1956).
Separate condemnation proceedings were instituted by the Buckeye Pipe Line Company in February 1952, seeking to secure rights-of-way over the lands of Elden E. Cooley and his son, John E. Cooley. In April 1952 the condemnation commissioners appointed by order of the Superior Court filed their report of the appraisal of the property taken indicating the amount of damages to be paid the two landowners by the Pipe Line Company. On May 8, 1952 the two landowners filed separate notices of appeal to the Law Division of the Superior Court from the commissioners' awards and gave notice in the language of R.S. 20:1-16, as it then existed, "to frame the issue, to strike a jury, and to fix a date for the trial of the appeal." These applications were adjourned on several occasions and not finally disposed of until December 4, 1952, when orders were entered providing for such relief, except that no provision was made for a trial date.
Meanwhile, the amount of the commissioners' awards was paid into court pursuant to R.S. 20:1-12 and the Pipe Line Company entered into possession, completed the laying of its pipe on the properties and since October 15, 1952, has been using the pipe for the transportation of petroleum products.
On January 5, 1953 the attorney for the Pipe Line Company wrote to the attorney who represented both landowners at this time, suggesting that because of the proximity of the lands to each other and the similarity of the issues involved in each case, both matters should be tried before one jury to save time and expense. The possibility of such a disposition was discussed informally with and tentatively approved by the then assignment judge of the Superior Court for Hunterdon County. The attorney for the landowners agreed
with the suggestion made and so indicated in a letter to opposing counsel on January 7, 1953, but no formal stipulation or order was ever entered making provision for such a course of action.
Thereafter, a jury was actually struck only in the John E. Cooley matter on January 21, 1953, and it does not appear that any such action was taken in the Elden E. Cooley case. This, presumably, was in furtherance of the agreement made.
At this stage in the proceedings both landowners moved in the Law Division "to dismiss the petition for the appointment of commissioners and all proceedings subsequent thereto" on the ground that the court lacked jurisdiction over the subject matter, but the relief sought was denied. Then, on February 7, 1953, another attorney was substituted in the Elden E. Cooley matter and immediately thereafter he sought and obtained an order granting a stay in the Elden E. Cooley case pending the disposition of an appeal to be taken by him to the Appellate Division from the denial of the motion to dismiss. No such stay was sought by John E. Cooley, but a similar appeal to the Appellate Division appears not to have been prosecuted pending the determination of the appeal in the Elden E. Cooley matter, although no formal stipulation or order to that effect was made.
Subsequently, the Appellate Division dismissed the Elden E. Cooley appeal and a further appeal to this court was similarly disposed of on October 19, 1953; see In re The Buckeye Pipe Line Co., 13 N.J. 385. A rehearing was denied, November 16, 1953. In the meantime, the appeal of John E. Cooley to the Appellate Division was dismissed for lack of prosecution on November 13, 1953.
There is indication in the record that John E. Cooley was in the military service until September, 1953. Whether he was so engaged since the ...