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Tubular Service Corp. v. Commissioner of State Highway Department of State of New Jersey

Decided: January 3, 1963.

TUBULAR SERVICE CORPORATION, A NEW YORK CORPORATION, PLAINTIFF-APPELLANT,
v.
COMMISSIONER OF THE STATE HIGHWAY DEPARTMENT OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

This appeal is from the grant of summary judgment in favor of the defendant as against plaintiff's complaint, first count, demanding condemnation by the State of its property on the ground of alleged deprivation of its use by the State Highway Department in the course of regulation of traffic on Tonnele Avenue, North Bergen, whereon the property abuts. The second and third counts of the complaint, seeking damages apart from condemnation, have been abandoned.

From the complaint, affidavits submitted on the motion, and concessions of fact at the arguments below and here, the following substantially undisputed facts emerge, either directly or by fair inference. Plaintiff owns a commercial structure on a plot of land approximately 85 feet wide and 290 feet in depth on the west side of Tonnele Avenue, a very heavily-trafficked, four-lane state highway in Hudson County. The land abuts a railroad right-of-way at its rear boundary. We were told at argument that the building runs almost the length of the lot. The front entrance of the structure is situated 13 feet from the curb line of the street. Plaintiff is in the business of buying and selling tubular steel products. Because of their length, the steel rolls delivered to its plant

can be transported there only by trailer trucks. Prior to defendant's recent construction on Tonnele Avenue of the center highway barrier over which this controversy has arisen, plaintiff customarily effected access to its premises for the trailer trucks, if they were approaching on the southbound lanes of the highway, by either backing them or driving them directly into the building through its central entrance door. Because of the proximity of the front door to the curb line, however, and the limitations inherent in the width of the highway (its center line is about 37 feet from the front door, or about 24 feet from the curb line), these entrance maneuvers entailed a temporary traversal of the wrong (easterly or northbound) side of the highway. We gather that there was no problem as to deliveries coming from the south as an ordinary left turn would bring the vehicles directly into the plant.

After careful engineering study and considerable public demand based upon hazardous traffic conditions on this highway, the State Highway Department undertook a program for its improvement through resurfacing, center barrier curbs and "turn arounds" over a distance of 6.189 miles, at a cost of almost $850,000, completing it July 12, 1961. The center barrier divider, which runs along the highway in front of plaintiff's property, is of a type successfully employed by the Department on other state highways. It effects a substantial reduction of accidents. As a result of the barrier, no vehicles approaching plaintiff's property from the south can effect entrance, as they are physically barred from a left turn onto the property, while trailer trucks coming from the north are foreclosed from ingress into the building because the physical conditions on plaintiff's property described above, coupled with the present inability to swing over to the easterly or northbound lanes of the highway, make impossible the technique of entry customarily employed by these elongated vehicles before the barrier was constructed.

Plaintiff concedes the lawfulness and reasonableness of the highway structure built by defendant as a matter of the State's police power to control highway traffic in the interests

of public convenience and safety. Its position nevertheless is that when such an obstruction prevents essential vehicular ingress to its premises the State has in effect taken its property and must compensate it therefor under the constitutional mandate that "Private property shall not be taken for public use without just compensation." N.J. Const., Art. I, par. 20.

Plaintiff does not complain of its present inability to enter the property from a southerly approach, or as to the necessity that vehicles leaving the plant proceed only in a southbound direction on Tonnele Avenue, conceding that mere "circuity of route" in coming from or going to the property as a result of center barriers is not actionable against the public authorities where, as here, the traffic control devices have been lawfully instituted in reasonable effectuation of safety objectives. See Annotation, 73 A.L.R. 2 d 689, 692-698 (1960). Its grievance is simply that it can no longer get the trailer trucks onto its property at all because of the barrier. As a result, it has had to obtain a license to unload the vehicles on the property of a neighboring landowner, who will not sell his land to it. Under the existing arrangement there is substantial added time and labor in handling the merchandise over what was involved previously. Thus, plaintiff's argument goes, the State has taken its property in that it has deprived it of an essential element of its commercial utility -- access from the highway by trailer truck.

Judge Artaserse ruled for the Law Division against the plaintiff, holding that notwithstanding the barrier plaintiff retained "reasonable means of ingress and egress" and that it was not entitled to compel condemnation proceedings because "the State has a right to do what it did" and plaintiff's "right is subservient to the right of the State." He also found the complaint barred by limitations. R.R. 4:88-15 (a).

Plaintiff makes the initial contention that it was improper for the trial judge to grant summary judgment since in so doing he was resolving ...


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