Goldmann, Conford and Freund. The opinion of the court was delivered by Freund, J.A.D.
[59 NJSuper Page 586] Plaintiffs Erwin Mueller and his wife, Hedwig, appeal from a judgment of dismissal entered on motion of the defendants at the close of plaintiffs' case. The action is one in lieu of prerogative writs in which plaintiffs seek either an order requiring the defendants, the New Jersey Highway Authority (hereinafter "Parkway Authority") and the State Highway Department, to condemn in an appropriate
proceeding certain property alleged by plaintiffs to have been "taken" by the defendants, Brown v. Murphy , 136 N.J.L. 183, 185 (E. & A. 1947); Muszynski v. New Jersey Turnpike Authority , 27 N.J. Super. 248, 251 (App. Div. 1953), or an injunction preventing the continuous interference by defendants with what are alleged to be property rights of the plaintiffs. The theory of plaintiffs' case is that the defendants deprived them of an easement of access by erecting a concrete curbing for an exit ramp from the Garden State Parkway, thereby rendering their property, in effect, landlocked. The curbing curves around the southeasterly portion of the plaintiffs' tract, but no part of it is upon or tangent to any property of the plaintiffs at any point. For this reason, the trial judge of the Superior Court, Law Division, sitting without a jury, concluded that there was no "taking" of plaintiffs' property for which just compensation must constitutionally be made. 1947 New Jersey Constitution, Art. I, par. 20.
Plaintiffs own a large tract of land in Block 204 of the tax map of the Borough of East Paterson. The block is subdivided into about 33 separate lots, most of which plaintiffs own. The lots immediately concerned in this case are No. 21 and No. 22, having combined dimensions of 50 feet in width by 125 feet in depth, and located near the southeasterly corner of the tract. Plaintiffs purchased their land from John Fencsak by deed dated August 30, 1947. The deed refers to the property conveyed by reference to the lot numbers on a map entitled "Map No. 2 of Property of John Fencsak, East Paterson, Bergen County * * * January 17, 1927," which map is on file in the Bergen County Clerk's office. The lot numbers referred to are the same as the lot numbers on the tax map.
Plaintiffs' tract is bounded on the north by Rudolph Avenue, on the west by Bank Street, on the south partly by Route 46 which is a state highway, and on the east by the privately owned lots 17-20 which, in turn, front on Ray Street. Ray Street is now a dead-end terminating at the
south where it has been cut off by the Garden State Parkway exit ramp. The ramp provides an exit for southbound traffic on the Parkway and feeds such traffic into the westbound lane of Route 46.
Before Route 46 was constructed in 1936, the frontage of lots 21 and 22, then owned by Fencsak, was on a street known as Roosevelt Avenue. By deed in 1936 Fencsak conveyed to the State of New Jersey whatever "right, title, and interest" he may have had in Roosevelt Avenue, which was bisected diagonally by Route 46. Roosevelt Avenue was vacated by the Borough of East Paterson on December 4, 1946, nine months prior to plaintiffs' acquisition of the tract. The vacation ordinance apparently was not recorded in the county offices.
The lots to the west of No. 21 and No. 22 have been leased by plaintiffs to a tenant presently in possession for a four-year term. The lots to the north of No. 21 and No. 22 have been conveyed by plaintiffs since the institution of this suit. Those lots are zoned for residential use; the highway lots for commercial use. And, as stated, the lots to the east of No. 21 and No. 22 are in other ownership. Thus it is plaintiffs' claim that unless they are afforded access to Route 46 to the south, lots 21 and 22 will be landlocked.
The curbing erected by the Parkway Authority is located to the south of the middle line of what had been Roosevelt Avenue. While not contiguous to any of the plaintiffs' property, nevertheless it is claimed that the curbing prevents automobiles traveling west on Route 46 from entering lot 21 as well as lot 22 which adjoins on the west. The exit ramp feeds traffic into Route 46 in such a manner as to make it impossible for cars traveling west on Route 46 to gain access to lots 21 and 22 without a dangerous bucking of Parkway traffic coming off the ramp.
Erwin Mueller testified at the trial that when he purchased the property in 1947, he intended to use these lots for business purposes, that he thought the lots in question fronted on Route 46, and that the denial of highway access has made
it difficult for him to lease the lots. He further testified that before the curbing was constructed, no one had questioned his right to gain physical access to Route 46 by driving over what had been Roosevelt Avenue, and that he had continuously driven in and out of ...