Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
This condemnation matter comes before the court on appeal of defendant Maas & Waldstein Co. from a Law Division order dissolving an ad interim restraint and striking so much of defendant's answer and separate defenses as did not admit matters alleged in the complaint.
Defendant sought a restraint pending final determination of this appeal. The State has agreed to hold the condemnation proceedings in statu quo pending our determination of the appeal.
Plaintiff instituted a condemnation proceeding to acquire a fee simple absolute interest in a portion of defendant's lands in Newark, N.J., fronting on the west bank of the Passaic River, a navigable stream, for highway purposes -- more particularly, for the construction of a portion of Section 5 of
Route 21 Freeway. N.J.S.A. 27:7-22.2 empowers the State Highway Commissioner to acquire such an interest.
In June 1956 plaintiff had a study made of the feasibility of a state highway route along and in close proximity to the westerly bank of the Passaic River, from Belleville in Essex County to Clifton in Passaic County. Plaintiff subsequently approved this project as State Highway Route 21 Freeway. It has been open and in use for over three years. Use of the new highway was so great that the heavy traffic created a bottleneck on McCarter Highway (also known as State Highway Route 21) running from Newark to the Belleville terminus of the Freeway. In time plaintiff ordered an engineering study made for the Belleville-Newark extension, and at the end of December 1961 approved a general property map for the acquisition of properties required for the right-of-way, running 1.225 miles from Riverside Avenue in Newark to William Street in Belleville.
The freeway, as it passes by and across defendant's property, is to be constructed in part on defendant's lands, together with the riparian rights it owns along part of its river front, and as to these the Commissioner does not dispute title and ownership. As to other parts which the freeway will traverse, the Commissioner does dispute title and ownership. This dispute is the subject of a separate action which defendant has instituted against the Commissioner, Maas & Waldstein Co. v. Palmer, Docket L-13821-62 P.W., already pretried. Part of the freeway will be constructed on elevated piers and abutments in the Passaic River, immediately in front of defendant's lands.
Plaintiff notified defendant on October 31, 1962 that condemnation of its property had been authorized. On January 16, 1963 defendant was served with a copy of the complaint and an order to show cause, dated January 8, seeking the appointment of condemnation commissioners. The order was adjourned without date, as was plaintiff's notice of motion for immediate possession, as demanded in the complaint.
Defendant filed its answer on February 28, 1963, denying plaintiff's authority to acquire its lands for the purpose indicated. The first two defenses, relating to accuracy of the description of the lands to be taken, have been abandoned. The core of defendant's contention is reflected in its third separate defense:
"Title to defendant's lands extends to and fronts upon the Passaic River, a navigable water highway in the State of New Jersey. By virtue thereof, defendant owns, is in possession of, is entitled to and enjoys valuable privileges, rights and access to, in and arising from said water highway, including, without limitation, inter alia use of said river for life and property fire protection by means of municipally operated fire boats and withdrawal of water, and docking rights. These lands, privileges, rights and access, in whole and in part, have been possessed and occupied by defendant and its immediate predecessors in title, as private property under claim of ownership for a long period of time, to wit: more than sixty years, without any right being asserted therein by the State of New Jersey. The proposed taking by plaintiff is not in aid of navigation, but solely for state highway purposes. Plaintiff is without statutory or other power to acquire through condemnation or otherwise, defendant's said lands, rights, privileges and access in said navigable water highway, and deny defendant access thereto and use thereof."
An amended complaint did nothing more than give a more specific description of the land. Defendant's answer was a ...