On appeal from the Superior Court, Appellate Division.
For dismissal -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. Opposed -- None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of the Appellate Division, which unanimously affirmed a judgment of the Superior Court, Law Division, in an action in eminent domain, awarding to the defendants-appellants the sum of $20,000 for the property taken. The case was tried before Judge Colie without a jury.
The appellants appeal to this court as a matter of right and there is an objection in limine that no appeal as a matter of right lies to this court under Const. 1947, Art. VI, Sec. V, par. 1, as implemented by R.R. 1:2-1. No application for certification has been made under R.R. 1:10.
Appellants contend, however, that the question before this court is that of just compensation to be paid to the owner of property in condemnation proceedings and that there is implicit in such a question a constitutional question. The mere argument that the award is inadequate
is not sufficient to raise any constitutional question unless the award or price fixed can be said to be arbitrary and confiscatory.
With this principle in mind we have examined the proofs. The highest value testified to was $26,500 by the appellants' expert, while one expert for the respondent testified as to a value of $18,500 and another fixed it at $20,000. The value testified to for the respondent on the face of the record seems to be supported by a more intimate knowledge of the property, including some prior fire damage which was an element to be considered.
We have here solely a question of fact based upon an interpretation and evaluation of expert testimony. Judge Colie viewed the premises before making his decision and certainly was in a better position than we are to evaluate the conflicting testimony. The appellants' contention seems to be there was no alternative except to regard the testimony of their witnesses as conclusive. This is the only basis upon which they can urge that there was no substantial evidence to support his judgment.
Much more proof is needed to establish that the action of the trial court was confiscatory and arbitrary as to amount to a denial of due process. Mere inadequacy of the award is not ordinarily sufficient to constitutionally support the proposition that an owner has been deprived of his property without due process of law.
In Roberts v. City of New York, 295 U.S. 264, 277, 278, 55 S. Ct. 689, 691, 79 L. Ed. 1429, 1435, 1436 (1935), Mr. Justice Cardozo, with his usual clarity, stated the reasons that support this conclusion, where he said:
"'If there has been any wrong done it is due not to the statute, but to the courts having made a mistake as to evidence, or at most as to the measure of damages.' McGovern v. City of New York, 229 U.S. 363, 370, 33 S. Ct. 876, 57 L. Ed. 1228 , 46 L.R.A., N.S., 391. Not every such mistake amounts to a denial of constitutional immunities, though the outcome is to give the owner less than he ought to have. In condemnation proceedings as in lawsuits generally the Fourteenth Amendment is not a ...