Civil action on motion to add interest to judgment.
Larrabee, J.c.c. (temporarily assigned).
[59 NJSuper Page 29] Hankins and Ferguson owned a tract on the north side of State Highway Route No. 37 and proposed to erect a gasoline service station thereon. In 1955 they applied to the Township
of Dover for a building permit for gasoline pumps. The permit was refused by the building inspector unless the owners obtained written approval from the State Highway Department. Upon application the State Highway Department issued a permit which stated that the owners' property was in the line of a proposed right of way which the Department expected to utilize for the expansion of Route 37, and that any gasoline pumps could not be nearer than 75 feet from the then existing northerly line of Route 37. Since that time the owners have never used the 75 feet referred to.
On July 17, 1957 the State instituted condemnation proceedings in the case, with the result that the commissioners made an award on June 12, 1958 of $9,500. From this award the State appealed, and on June 17, 1959 obtained a jury verdict in the Superior Court of $9,000, for which amount judgment was entered.
The owners now move to have the judgment amended to include interest from July 17, 1957, contending that the omission was an oversight. The statute directs the commissioners to make an award which represents a "just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the plaintiff for the land or other property and damages as aforesaid, as of the date of the commencement of the action for condemnation." N.J.S.A. 20:1-9.
Under N.J.S.A. 20:1-6 the commissioners are directed to "examine and appraise the land or property and assess the damages * * * in such manner as the court shall direct."
Interest is allowed on the basis of specific statutory provisions providing for it, or on equitable principles where there is no statute. New Jersey Highway Authority v. Ellis , 24 N.J. 1 (1957). It does not appear that any declaration of taking has been filed under N.J.S.A. 27:12 B -7, and consequently the provisions of Tille 20 of the Revised Statutes apply.
Oliphant, J., in the Ellis case, states that "In condemnation proceedings interest is allowed where the condemner goes into possession without full payment and the owner of the property is deprived not only of his property but of the profits and increments from the use and for this latter deprivation interest is allowable on equitable principles," citing Acquackanonk Water Co. v. Weidmann Silk Dyeing Co. , 99 N.J.L. 175 (E. & A. 1923), where the court said that "where the statute does not, in terms, provide for an allowance of interest equitable principles require that it be allowed." But in the Acquackanonk case the condemners took possession from the time of the filing of the petition to condemn and manifestly the owners were deprived of their property from that date without just compensation.
Accordingly, interest should be allowed from the date on which possession is taken. Board of Education of City of Vineland v. Ross , 32 N.J. Super. 79 (Law Div. 1954). It is disputed as to when and if possession was taken. An argument favoring the owners would be that the action of the State Highway Commissioner in refusing to approve the erection of structures within the proposed right-of-way constituted taking possession.
Possession of land means the actual control by physical occupation and the holding and exercise of dominion over it; it is that possession or relation which shall give one its use and control and excludes all others from like use or control. National Cypress Pole & Piling Co. v. Hemhill Lumber Co. , 325 Mo. 807, 31 S.W. 2 d 1059, 1063 (Sup. Ct. 1930); Bank of America National Trust & Savings Ass'n. v. Bank of Amador County , 135 Cal. App. 714, 28 P. 2 d 86, 89 (D. Ct. App. 1933); see State v. Labato , 7 N.J. 137, 148 (1951).
The act of the State Highway Commissioner impaired the use and enjoyment of the owners. However, this is not ...