On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Burling, Francis and Proctor. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Weintraub, C.J.
This is a condemnation case. Defendant Bowley appeals and tenders the question whether the trial court erred in excluding a contract of sale between him and one T. P. Morgan relating in part to the subject lands. We certified the matter on our own motion before consideration of it by the Appellate Division.
The declaration of taking was filed on September 19, 1955. For several years prior thereto, it was known that plaintiff planned to acquire a right of way for an extension to connect its turnpike with the Pennsylvania Turnpike. The alignment was officially declared on April 14, 1954.
The Morgan contract is dated April 10, 1953. The agreement provided that Morgan would pay Bowley $5,000 per acre for an assemblage of 400 acres provided Bowley could deliver title 60 days after the official declaration of the permanent alignment of the turnpike extension, the $2,000,000 purchase price to be paid in cash at that time. It expressly stipulated that if Bowley could not deliver "because of the alignment of the New Jersey Turnpike Extension the said Joseph Bowley will not be penalized or
the said T. P. Morgan will not be bound by this agreement," in which event Morgan's deposit of $1,000 would be returned. According to Bowley, the deposit was made in the form of ten bills of $100 denomination, and was returned in the same form some time after the declaration of the permanent alignment made it evident that 400 acres could not be assembled.
Bowley urges (1) that the contract should have been admitted as evidence of the value of the lands taken and damaged by the taking and (2) "there was an incidental taking of a contract along with and as part of his land," for which compensation should be allowed.
The contract prescribed the area within which the 400 acres were to be assembled. Bowley points to seven parcels therein which he believes he could have acquired. They, together with his own holdings, totaled 496.12 acres. The turnpike right of way embraced 72.13 acres and hence if it should appreciably invade the area, there could be no assemblage of 400 acres. In fact the right of way as finally fixed roughly bisected the specified area.
That Bowley knew at the time of the Morgan contract (April 10, 1953) that the right of way would probably thus prevent an assemblage of 400 acres seems indisputable. On October 24, 1952 Bowley acquired two parcels constituting the Simpkins Farm. On the same day he conveyed the southerly portion of the farm to Markheim-Chalmers-Ludington, Inc. In his deed Bowley employed a description which made specific reference to the proposed southerly line of the turnpike extension and conveyed the lands south of that line. The parties simultaneously made a side agreement for an additional payment or refund, as the case might be, if the turnpike line as finally fixed should enlarge or reduce the total of 130.021 acres which the deed purported to convey. As matters developed, the final line approximated the one used in the deed and reduced the tract by 27.154 acres, which were reconveyed to Bowley on August 17, 1955, and became part of his holdings of 204.15 acres as of the date of declaration of taking.
There were multiple owners of some of the seven parcels referred to above. At the time of the trial of this case, one parcel was subject to an action to quiet title, the ultimate issue being adverse possession. Except for the acquisition of a tract of 45 acres (not contiguous to his own lands) on August 5, 1953, Bowley's efforts as of the date of declaration of permanent alignment (April 14, 1954) had yielded but one written agreement covering 11.04 acres. Nothing would be gained by recounting his testimony as to sundry conversations, negotiations and oral understandings. It is sufficient to say that the record is barren of evidence of the availability to Bowley of the required acreage. In fact the central theme of his testimony is that he was restrained from conclusive steps by uncertainty as to whether the right of way would render his efforts futile.
Morgan did not testify. There was no proof of his ability to perform. He was described by Bowley as a prominent ...