Ascher, J.s.c. (temporarily assigned).
Awards in the above captioned cases were made by commissioners appointed by the court, R.S. 20:1-1 et seq. , and in each suit appeals were taken to the Superior Court, in accordance with N.J.S.A. 20:1-16, by the plaintiff and the respective defendants, the reason being that none of the parties was satisfied, plaintiff contending that the awards were excessive, and defendants contending that they were inadequate and did not properly assess the damages for the loss and diminution of riparian rights of certain of defendants.
Plaintiff Monmouth Consolidated Water Company, a corporation of the State of New Jersey, hereinafter referred to as "water company," is a public utility corporation, duly
authorized and empowered to take lands and property for public use by virtue of R.S. 48:19-15. The following awards of damages were tendered and paid to the respective defendants, as indicated by the report of the commissioners, in accordance with the order of the Superior Court dated September 9, 1960:
In the Blackburn et als. suit $8,866.00
In the Flock et ux, et als. suit 10,267.40
In the Fredericks suit 11,693.00
These appeals were consolidated for trial by the order of Judge Mariano, dated April 18, 1961, trial by jury being waived.
The trial of these cases was protracted and resulted in some 1221 pages of transcript. The takings by the water company involved lands running to the center of abutting streams and some portion of farm lands of the owners. At least two of the landowners were using water from the abutting streams for irrigation.
The basic issues, in connection with which voluminous testimony and evidence was adduced before this court, involved claims for the actual taking of lands, damage to the remainder after the taking, replacement cost for the use of water previously enjoyed, drainage rights, the possible cost of fencing, together with loss of access to the streams.
It is contended by the water company that in each case the lands taken were low, swampy areas, bordering headstream waters of Swimming River and low parts of steep slopes on the side of the ravines in which such streams run. In the Flock case there was a taking of 3.90 acres from a tract of 112.58 acres; in the Fredericks case there was a taking of 6.28 acres from a tract of 103.80 acres; in the Blackburn case there was a taking from two tracts: (1) 7.78 acres from a tract of 96.23 acres and (2) 0.28 acre from a tract of 65 acres.
The general rule of damages in eminent domain proceedings is the difference between market value of the entire property before the taking and the market value of the property remaining after the taking. Implicit in this rule are included such damages as will be sustained by the landowner as a result of deprivation of use and such physical effects, produced by the taking, as the inconvenience of being cut off from its water supply, the cost of replacement of the use heretofore enjoyed, etc., to the end that the landowner is made whole.
The court has carefully considered the testimony of defendants Flock and Fredericks, whose properties were irrigated from the streams in question for some time prior to the takings (August 23, 1960). The takings were necessitated by the plan of the water company to construct a dam in Swimming River which would result in an average rise in the overall level to contour 35.
It appears from the testimony of defendant Flock that prior to the takings he operated an irrigating system, which cost some $3,800, for growing potatoes. Also shown were the requirements of the Flock farm for such irrigation, as well as that of the Fredericks farm.
It was further contended that the takings would constitute a complete barrier to the water; further, that the takings would include lands up to contour 40, constituting a 5' area or strip, preventing their access to the water. The same situation obtained as to the Blackburn property.
Expert testimony was elicited from Neal Munch, associated with the United States Department of Agriculture, Conservation Service, as to the necessity of installing irrigation ponds, and as to the amount of water needed for common irrigation on the Flock and Fredericks farms. He also testified as to the cost of such a holding pond on the Blackburn farm.
Further expert testimony was produced by the witness Roger Van Ness, of the Stotkoff Company, well driller, as to the cost of a well to produce water sufficient for the
needs of the Flock and Fredericks farms, and the cost of such construction and the equipment necessary to operate the same.
The element of fencing was testified to be necessary because of an increased exposure to all of the property abutting upon the contemplated reservoir, in which connection the water company stated it was not its intention to construct any ...