Conford, Freund and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
This is a condemnation action commenced July 10, 1957 by the plaintiff State of New Jersey to acquire lands of defendant Silvio A. Lanza situated in the area commonly known as Round Valley, for purposes of constructing a water supply reservoir, pursuant to L. 1956, c. 60, N.J.S.A. 58:20-1 et seq. Among other defenses interposed by that defendant (hereinafter referred to as Silvio) was the contention that the enabling act was unconstitutional. This question was determined adversely to him in the Supreme Court on June 27, 1958. State v. Lanza , 27 N.J. 516 (1958). The United States Supreme Court dismissed an appeal from that ruling for lack of a substantial federal question. Lanza v. State , 358 U.S. 333, 79 S. Ct. 351, 3 L. Ed. 2 d 350 (1959).
Final judgment was entered in favor of the State in the Law Division November 27, 1957. An award of $38,425 for Silvio's interest was made by condemnation commissioners on February 27, 1958. An appeal from this award by Silvio was tried in the Law Division, consuming 22 trial days over the period from October 30, 1958 to July 6, 1959. The result was a 31-page opinion by the trial judge, wherein, after an exhaustive analysis of the evidence and opposing arguments, the sum of $57,623.93 was arrived at as "just compensation" for all of the property involved. An appropriate judgment was filed October 2, 1959. Of the two separate appeals now before us for disposition, one is from the said judgment.
The second appeal before us is by Vito Lanza (hereinafter referred to as Vito), brother of Silvio, from certain orders entered in the Law Division, before and at the trial of the appeal, denying his application for intervention in the case as a party in interest. However, we granted Vito leave provisionally to participate in the appeal on the meritorious questions while prosecuting the intervention appeal, and he has been heard with respect thereto.
We deal first with the intervention appeal. The circumstances surrounding Vito's acquisition of his interest in the property and attending the original denial of his claim to intervention by order dated August 1, 1958 are detailed in State v. Lanza , 60 N.J. Super. 130 (App. Div. 1959), and will not be repeated here. (The case cited was a dismissal of an earlier appeal by the Lanzas from orders of the Law Division, including the denial of intervention, because of inadequate prosecution of the appeal.) Suffice it here to say that Silvio, by deed dated June 24, 1958 and recorded June 30, 1958, conveyed an undivided one-tenth interest in the lands in question to Vito. In the earlier appeal Vito told the court the conveyance was in consideration of past advances to Silvio. No proof justifying a conclusion that this was not a valid instrument legally transferring the purported interest to Vito has ever been submitted to the court. We consequently treat Vito as owner of an undivided one-tenth interest in the real estate for purposes of the legal issue presented.
The motion for intervention was renewed before the trial judge at the inception of the trial as well as later in its course but was denied each time, finally by order dated September 29, 1959. However, Vito, who is a New York lawyer, attended all trial sessions and sat and consulted with trial counsel for Silvio continuously during the course of the trial. Moreover, he has advised Silvio and consulted with previous counsel for Silvio during the whole course of
the litigation. See State v. Lanza, supra (60 N.J. Super. , at pp. 132, 133); State v. Lanza , 60 N.J. Super. 139 (App. Div. 1960). A petition for certification of our dismissal of the previous appeal was dismissed by the Supreme Court, but "without prejudice to the renewal of the grounds sought here to be raised on appeal from final judgment."
The State suggests that since Vito has had one opportunity to appeal the denial of intervention which he wasted by failure to prosecute the appeal, thereby incurring the dismissal mentioned above, he should not be accorded another opportunity. However, the language of the Supreme Court order dismissing the petition for certification of the dismissal suggests to us the advisability of disposing of the question so that this already excessively protracted litigation may be brought to a final termination.
We have concluded that Vito Lanza was entitled to intervention but that the denial of his application has not visited upon him and his property interests such prejudice as would justify nullification of the hearing and determination of the appeal in the Law Division respecting just compensation for the taking and incidental related issues.
The practice rules here applicable read as follows:
"4:37-1. Intervention of Right
Upon timely application anyone shall be permitted to intervene in an action: (a) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof; * * *."
"4:37-3. Permissive Intervention
Upon timely application any one may be permitted to intervene in an action when an applicant's claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
A person desiring to intervene shall serve a motion to intervene upon all parties [affected thereby]. The ...