On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Proctor, J. Heher, J., concurring in result.
The Appellate Division affirmed a judgment of the Law Division entered upon a jury award of $8,200 as compensation for the taking of a part of defendant's property by the plaintiff municipality in the latter's exercise of its power of eminent domain. N.J.S.A. 40:60-25.1; N.J.S.A. 20:1-1 et seq. On the defendant's petition we granted certification. 27 N.J. 73 (1958).
The defendant corporation was the owner of a plot of land fronting on the westerly side of Oak Street in the Village of Ridgewood. The property and the surrounding area are zoned and occupied for business purposes. The property had a frontage of 75.40 feet, a depth of 150 feet and a rear width of 75.38 feet. A brick building containing four stores, which are leased by the defendant to tenants, occupies the entire front of the lot. The store on the extreme south of the building is 30 feet in width and 70 feet in depth; the one next to it is 15 by 70 feet and the other two toward the north end are each 15 by 50 feet. Each store has a
rear door and a cellar, access to which may be had only through the rear. Access to the rear is gained by defendant's right of way in a 14-foot-wide alley which runs along the southerly side of the building from Oak Street to the rear line of the lot. The rental from these stores brings the defendant an annual gross income of $7,500.
The municipality adopted an ordinance authorizing the acquisition by condemnation or other lawful means of a number of parcels of land, including rights of way, for the purpose, as stipulated, of making "the lands available to the public for the public parking of vehicles or for other public uses or purposes." Among the properties enumerated in the ordinance was the rear 70 feet of the defendant's lot. The taking of this part of defendant's property occurred on June 22, 1956, leaving the defendant with a lot 75.40 feet in width and 80 feet in depth. The open space in the rear of defendant's building was thereby reduced to 10 feet in depth behind its two stores at the southerly end and 30 feet in depth behind the others. At the corner of the takeline ten feet back of the southerly end of the building the elevation of the portion condemned is two feet higher than defendant's remaining property. Moving north the height gradually diminishes until it becomes level with the defendant's remaining land on the northerly end. A retaining wall which slopes with this decline is located along this line. Also condemned was the easement of the defendant and others in the 14-foot alley for use as a public right of way.
Pursuant to the procedure under N.J.S.A. 20:1-1 et seq., condemnation commissioners were appointed. From their award of $16,450 the defendant appealed and the village cross-appealed. On a trial in the Law Division the jury rendered a verdict for the defendant in the amount of $8,200 for the land taken and "no award for consequential damages." Defendant's motion for a new trial was denied.
On this appeal the defendant first argues that the jury's finding of no consequential damages deprived it of just compensation in the "constitutional sense." N.J. Const. 1947, Art. I, par. 20; U.S. Const., Amend XIV.
Where only a part of an owner's land is taken he is entitled to be compensated not only for the value of the land taken but also for any diminution in the value of his remaining land which may be attributed to the taking. Sterner v. Nixon, 116 N.J.L. 418 (E. & A. 1936); State Highway Commissioner v. National Fire Proofing Corp., 127 N.J.L. 346 (E. & A. 1941); Tennessee Gas Transmission Co. v. Maze, 45 N.J. Super. 496 (App. Div. 1957). However, it is entirely conceivable that under certain circumstances severance will not effect a change in the value of the remaining portion of an owner's property. See In re Parking Authority of City of Hackensack, 30 N.J. Super. 534 (App. Div. 1954). In the light of our ultimate determination that certain errors committed at the trial will require a reversal, it is unnecessary for us to decide whether the jury's finding of no consequential damages deprived the defendant of its property without just compensation.
The most significant of the trial errors which the defendant complains were prejudicial relates to the court's charge to the jury as to the relationship between the part taken and the remainder of the property.
Defendant called Smith and Schwenn as its experts. They testified that the rear of the property (the part taken) had been used as a parking lot by the defendant in which it rented space on a monthly basis and from which it received an annual gross income of $1,272. Four spaces were reserved without charge for tenants occupying defendant's stores. In addition, this area was used for access to the rear delivery entrances to the stores. According to these witnesses, the taking of this land would result in a diminution in the value of the defendant's remaining property because of the following factors: (1) the elimination of possible future expansion of the building; (2) the difficulty of making rear-door deliveries to the stores; (3) the loss of rear parking privileges by the tenants; ...