For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
On November 14, 1958 the plaintiff, New Jersey Turnpike Authority, instituted an action in condemnation pursuant to R.R. 4:92. It alleged that it was authorized by N.J.S.A. 27:23-5(j) to exercise the power of eminent domain; it sought to condemn 21 parcels of land owned by the defendant City of Jersey City and located within its borders along a route selected by the Turnpike Authority; and it demanded judgment appointing three commissioners in accordance with the provisions of R.S. 20:1-1 et seq. to fix the compensation for the taking of the land "including the damage, if any, resulting from the taking, to any remaining property, and to make separate awards for each parcel of land." An order to show cause was issued, an answer joining in the demand for the appointment of commissioners was filed, and on February 16, 1959 an amended order appointing commissioners was entered. The amended order directed that the commissioners examine and appraise the land and fix the compensation for the taking of the land "including the damage, if any, resulting from the taking to any remaining parcel as of the date of taking and to make separate awards for each of said parcels of land."
The report of the commissioners was filed on April 29, 1960. It first set forth that hearings were held on many
days from May 12, 1959 through February 16, 1960, that these hearings were attended by representatives of the parties, that the land was examined on three separate occasions, and that valuation evidence was submitted and duly considered along with the arguments and briefs submitted on behalf of the parties. It then certified that the commissioners had made a just and equitable appraisement of the land "including the damage, if any, resulting from the taking, to any remaining property, as of the date of the commencement of this action" and that they had determined "that the sum of $523,715 represents a just and equitable value" of all of the lands and property in question "including consequential damages." The concluding paragraph of the report read as follows: "We do award and report that the New Jersey Turnpike Authority pay to the owners-defendants, the City of Jersey City, for the land and premises to be taken for public use the sum of $523,715 as the value of said land and premises and damages thereto."
On May 10, 1960 the Turnpike Authority, through its counsel Mr. Richman, filed a petition praying that the report of the commissioners be declared null and void, that three substituted commissioners be appointed and that the Turnpike Authority's time for appeal be extended. The petition alleged that the report of the commissioners was defective in the following respects: (1) the report stated that the valuation was as of the date of the commencement of the condemnation action in 1958 whereas the actual taking of the land by the Turnpike Authority was in December 1954 and the parties had stipulated that the valuation would be as of the date of the taking; (2) the report referred to "consequential damages" which "may include damages which are not compensable and should not have been considered"; and (3) the report made an award of a single lump sum rather than a separate award for each of the 21 parcels. Upon the filing of the petition, an order to show cause was issued and the time for appeal from the award of the commissioners was extended.
On May 20, 1960 the commissioners addressed a letter to the court with respect to the three objections raised by the Turnpike Authority. The letter contained the following statements and offered to support them by affidavits or testimony if the court so desired:
"Mr. Richman makes three points. First, that from the Report itself he concludes the valuations fixed by the Commission were arrived at as to the value of the lands on the date of the starting of the suit which was November 14, 1958. In our judgment, affirmative action was started by the Turnpike as of the date it took possession of the lands in 1954. In this case at our hearings it was stipulated that the values to be arrived at were values as of the time of the taking, that is, December 24, 1954 and no testimony was received as to valuations except as to those that obtained in 1954, nor was any other valuation date considered by us.
The second point that Mr. Richman makes is that of these 21 parcels, it was the duty of the Commissioners to appraise each parcel separately. We did appraise them separately but did not make them part of our report. In our report we fixed the total of the value of the lands separately appraised by us. If the Court wishes to have that separate appraisal, we will be glad to send it to the Court and all counsel.
The next point Mr. Richman makes is that there is no way to distinguish the item of consequential damage from the item fixing the value of the land taken. We followed the ordinary rule, basing our value of land taken on the evidence before us and where there was damage to the remainder, the item of such consequential damage was included in the award for that particular parcel. All witnesses where there was a matter of consequential damage, both for the State and for the Authority, testified to such consequential damage."
So far as the record before us indicates, there was never any reply to the letter from the commissioners. On October 10, 1960 counsel for the parties appeared before the Law Division of the Superior Court which then granted the Turnpike Authority's petition. The Law Division expressly rejected the position of counsel for Jersey City that the commissioners should have the right "to remold and conform" their report to accord with their actual determinations as clarified by their letter of May 20. On ...