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State v. Fisher

Decided: February 27, 1959.

STATE OF NEW JERSEY, BY THE STATE HIGHWAY COMMISSIONER, PLAINTIFF-RESPONDENT,
v.
AUGUSTINE T. FISHER AND MADELINE H. FISHER, DEFENDANTS-APPELLANTS, AND BOROUGH OF TOTOWA, ETC., DEFENDANT



Price, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.

Hall

[54 NJSuper Page 277] This is a condemnation case. The actual taking of the property for highway purposes occurred a considerable number of years before the institution of the condemnation action. After the award of the condemnation Commissioners, appellants, the owner of the property involved and his wife, sought, by petition and order to show cause in the Law Division, to compel the payment by the State of a "fair and equitable rate" of interest on the award

from the date of the actual taking until the filing of the complaint, allegedly to compensate them for the loss of use of the property during that period. The order to show cause was dismissed on the return day. The appendix does not disclose the reasons assigned by the trial judge for his action. This appeal is from the judgment of dismissal.

In the early part of 1940 appellants were the owners of a tract of land fronting on the then location of State Highway Route No. 6 in the Borough of Totowa. The State Highway Commissioner determined to relocate the road in that area and took possession of a part of appellants' lands about 105 feet front and from 20 to 30 feet deep for that purpose under his right to do so in advance of payment of compensation therefor. R.S. 27:7-22. The relocated road was shortly thereafter constructed across this parcel and a small part of appellants' remaining lands were utilized by way of slope rights and for the discharge of water from a drainage ditch. We accept as true appellants' statement that the taking took place not later than the early part of January, 1940, since plaintiff filed no answer to the instant petition so alleging. There appears to be no question but that appellants were deprived of all use of the property taken from that time.

During the ensuing 16 years the parties were apparently unable to agree on the compensation to be paid, but the Commissioner did nothing by way of institution of condemnation proceedings until the complaint in this action was filed November 15, 1956. R.S. 27:7-22 directs the Commissioner to commence an action "upon * * * exercising the right of condemnation and entering upon and taking land * * *." The statute does not contemplate any significant delay. See State by State Highway Com'r v. Jones , 27 N.J. 257, 261 (1958); cf. Haycock v. Jannarone , 99 N.J.L. 183 (E. & A. 1923); Goodavage v. State Highway Commission , 96 N.J. Eq. 424 (Ch. 1924).

In the usual form, the complaint demanded judgment for the appointment of three Commissioners in accordance with

our eminent domain statute (R.S. 20:1-2, as amended L. 1953, c. 20) to fix the compensation to be paid for the taking of the land and premises, including the damage, if any, resulting from the taking to any remaining property, "as of the date of the commencement of this action." Such is the command of the statute. R.S. 20:1-9 as amended, L. 1953, c. 20. Appellants filed no answer to the complaint, and the usual judgment was entered on December 21, 1956 appointing Commissioners and directing them to fix compensation as prayed in the complaint.

The Commissioners examined the property and held a hearing at which the parties were represented by their attorneys. The report was filed September 19, 1957 (within the time fixed by the judgment and orders extending the same). It was stated therein: "And we do hereby report the compensation to be paid by the plaintiff as aforesaid to be as follows: Fifteen Hundred Eighty Dollars ($1580) including therein use by the State." (Emphasis ours.) It is to be presumed that the Commissioners, pursuant to the statute and the judgment, ascertained the value of the land taken and damages to the remainder as of the date of institution of suit and then added thereto some figure representing their opinion of the loss of the owners' use or benefit from the land since the actual taking. It is to be noted that there is no breakdown in the report to indicate how much of the figure thereof was awarded for such use and how much for the value of the property taken and damage to the remainder. No appeal was taken by either party. R.S. 20:1-16, as amended. The time for any such appeal expired ten days from September 21, 1957, the date on which plaintiff served a copy of the report on appellants' attorney. R.R. 4:92-6(a). The present petition was filed long after that date, so it may not in any sense be considered as an appeal. Appellants concede that the award has become a finality.

Appellants argue that the Commissioners had no power or authority to include in their award the element of use by the State prior to the institution of the action; that the

language in the report to that effect should therefore be treated as mere surplusage, and that appellants are entitled to compensation for such use to be allowed by the Law Division adding to this award interest thereon from the date of the taking.

The short and conclusive answer to appellants' claim for the relief sought (apart from any procedural questions) is that it would be inequitable to add interest to the amount of the award as made to compensate for any loss of use of the property taken when the Commissioners, rightly or wrongly (a question which we need not decide, although observing that the scope of power granted to these legislative creatures is sharply specified, R.S. 20:1-9, as amended, but see Bowen v. State Highway Commissioner , 8 N.J. Misc. 252 (Sup. Ct. 1930) and State v. Jones, supra (27 N.J. , at page 263)), included some undisclosed amount for "use by the State" in the figure of compensation awarded. To add interest for a 16-year period on top of such an award would grant a double allowance for the owners' deprivation of use to some unknown extent. By the same ...


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