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Port of New York Authority v. Howell

Decided: January 18, 1960.

THE PORT OF NEW YORK AUTHORITY, PLAINTIFF,
v.
JOSEPH C. HOWELL, DEFENDANT



Leyden, J.s.c.

Leyden

The Port of New York Authority publicly announced the second decking of the George Washington Bridge on January 13, 1955. The improvement is necessary because of the present heavy and anticipated increase in vehicular traffic. The project is a gigantic one from the standpoint of engineering, of construction and of financing, requiring the widening of the New Jersey approaches and exits to and from the bridge (commonly referred to as the Bridge Plaza area), located in the Borough of Fort Lee. In addition, new depressed highways to and from the second deck are in the course of construction, as well as old marginal roads relocated and rebuilt. It became necessary, therefore, for the Authority to acquire by purchase or condemnation numerous parcels of real estate.

Our Legislature has given the power of eminent domain to the Authority by N.J.S.A. 32:1-35.1 et seq., R.S. 32:1-75, 32:1-132, and N.J.S.A. 32:1-35.15, 17a and 17b, under which it may proceed under our general Eminent Domain Act, R.S. 20:1-1 et seq. , or, at its option, under the so-called Airport Acts, supra. It elected to proceed under the Airport Acts and the cases were heard by me.

There are recognized basic rules to follow in arriving at just compensation which are applicable in all the cases. Our Constitution provides: "Private property shall not be taken for public use without just compensation. * * *" 1947 Constitution, Art. I, par. 20. Just compensation means the payment of such a sum of money to the owner of the property taken or damaged as will make him whole; that is, upon the receipt by him of the compensation and damage awarded he will not be any poorer by reason of his property being so taken or damaged; Bowers v. Town of Bloomfield , 81 N.J. Eq. 163 (E. & A. 1913).

I am therefore charged with the duty of making an award in keeping with the spirit of the Constitution in that a property owner should receive just compensation for his property taken and damages, if any, as may result to the residue of the property. When we speak of just compensation, we have in mind a figure that will be fair and just, not only to the property owner, but also to the condemning authority. The word "just" intensifies the meaning of the word "compensation," conveying the idea that the equivalent to be paid for the property taken shall be real, substantial, full, and ample. This expression in the Constitution cannot be diminished. Currie v. Waverly & N.Y.B.R. Co. , 52 N.J.L. 381 (E. & A. 1890). The landowner is entitled to receive the fair price for any permitted use for which the land has a commercial value of its own in the immediate present or in reasonable anticipation in the near future. This concerns the market value, having the reasonably anticipated permitted use in view. The rule limits the proof to the value of the land as of the control date, i.e. , the date of taking, in the condition of the land at that time and to the uses to which it is naturally adapted and restricted. It excludes speculative and possible use if improvements and changes were made. Matters that are collateral, involving calculation of costs and profits, are too remote; Currie v. Waverly & N.Y.B.R. Co., supra; Ringwood Co. v. North Jersey District Water Supply Comm. ,

105 N.J.L. 165 (E. & A. 1928). In this connection local planning and zoning regulations in effect as of the control date are material and relevant on the question of usability and have a vital bearing on the commercial value of the land; Overpeck Land Corp. v. Village of Ridgefield Park , 104 N.J.L. 402 (E. & A. 1928); State, by State Highway Com'r. v. Gorga , 45 N.J. Super. 417 (App. Div. 1957), modified, 26 N.J. 113 (1958).

Buildings, trees, shrubs, top soil, etc. , underlying stone, sand and gravel are component parts of the land and are not to be valued separately and apart from the land, but it may be shown to what extent the land is enhanced in value thereby, subject, of course, to the use restrictions imposed by valid local zoning regulations; In re Housing Authority of City of Newark , 126 N.J.L. 60 (E. & A. 1941); Manda, Inc. v. Delaware, L. & W.R. Co. , 89 N.J.L. 327 (E. & A. 1916); Ringwood Co. v. North Jersey District Water Supply Comm., supra; Ross v. Commissioners of Palisades Interstate Park , 90 N.J.L. 461 (Sup. Ct. 1917).

One of the tests to be applied is to ascertain the price the lands would bring in the hands of a prudent seller at liberty to fix the price and the conditions of the sale. In other words, what a willing buyer not compelled to buy would give to a willing seller not compelled to sell. City of Trenton v. Lenzner , 16 N.J. 465 (1954). Another test is to consider the total value of the property before anything is done by the condemning authority, then consider the value after the property has been taken. The difference between the two should represent the amount of money the property owner should receive.

In the absence of a statute authorizing it, injuries to a business or a loss of profits resulting from the condemnation of a fee is not an element of damage in determining just compensation for the permanent taking of that fee. The sovereign or condemning authority ordinarily takes the fee, as was done in the cases now before me. The rule in such cases is that compensation for the fee interest does not include

future loss of profits, expenses of moving removable fixtures and personal property from the premises, the loss of good will which inheres in the location, or other like consequential losses which would ensue from the sale of the property to someone other than the sovereign or condemning authority. No doubt all of these elements would be considered by an owner in determining whether and at what price he would willingly sell and by a buyer whether and at what price he would be willing to buy, but the courts have generally held that the items mentioned are not to be reckoned separately as part of the just compensation. Income derived from a business conducted depends upon various factors not attributable to the land and furnishes no criterion for the determination of the market value ...


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