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State v. Gallant

Decided: July 7, 1964.

STATE OF NEW JERSEY, BY THE STATE HIGHWAY COMMISSIONER, PLAINTIFF-RESPONDENT,
v.
BERNARD GALLANT AND MATILDA E. GALLANT, PARTNERS TRADING AS CHARLES E. ROBERTS CO., ET AL., DEFENDANTS-APPELLANTS



For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.

Haneman

[42 NJ Page 584] The State of New Jersey, by the State Highway Commissioner, instituted proceedings to condemn certain

lands in Paterson owned by defendants. On appeal from the award of the Commissioners, the Law Division entered judgment for defendants for $52,000, which sum represented the value of land and buildings, but denied allowance for certain looms located on the premises. Defendants appealed to the Appellate Division, which affirmed the judgment of the Law Division in an unreported opinion. This court granted defendants' petition for certification. 41 N.J. 196.

Defendants adduced testimony in the Law Division concerning condition, value, removability and cost of removing the looms from their present location. At the end of defendants' case, plaintiff moved to strike this evidence on the ground that no compensation could be allowed for either the value or the cost of removal of the looms since they were personalty. The motion having been granted, plaintiff offered no counter-testimony. The factual recital which here follows is obtained from defendant's proofs.

In 1898 Charles E. Roberts established a narrow fabric weaving business in Paterson. Shortly prior to January 1917 he constructed a brick building at the present location in which he installed six looms on the first floor and six looms on the second floor. Half of these 12 looms had been used by Roberts at the former location. At about this time his daughter Matilda became a partner in the business which operated under the trade name of Charles E. Roberts Company. Subsequently Matilda's husband, Bernard Gallant, succeeded to his father-in-law's interest. The business operated continuously with these looms in their original positions from 1917 until 1961, when the property was taken by the State of New Jersey in connection with the construction of Interstate Highway 80.

One of the looms was nine feet long, seven were fifteen feet long and four were eighteen feet long. Their average weight was 8,000 pounds. With the exception of one self-powered loom, they were attached to a central power unit by a shaft and belt system. They were bolted to their respective floors with three inch lag screws. Although the looms were thus

attached, their removal from the building would be attended with more complications than the simple removal of the screws. Because of its length and weight, transportation of each loom as a complete unit would subject the shafting to prohibitive strains and stresses. The only safe method of transportation would be by dismantling at the old location and reassembling at a new location. This in turn would give rise to a complex engineering problem. Because of the age of the machines it would be necessary to make extremely accurate drawings of every elevation point so that when reassembled, every part would be in the same position relative to every other part as it originally had been, otherwise the parts of the equipment which had "worn together" over the years would no longer fit together in precisely the same way and severe damage would result. The total value of the looms where located is $52,000. The cost of moving would be $39,600 for dismantling and reassembling, plus transportation costs.

In striking the testimony of the value and cost of removing and reassembling the looms, the trial court held they were not compensable as part of the realty, purportedly applying the classic test of Teaff v. Hewitt, 1 Ohio St. 511 (Sup. Ct. 1853), as set out in Fahmie v. Nyman, 70 N.J. Super. 313 (App. Div. 1961).

The Appellate Division held that even if the looms might be regarded as fixtures under any aspect of the fixture doctrine, in the condemnor-condemnee situation, removable fixtures were not compensable, citing Port of New York Authority v. Howell, 59 N.J. Super. 343 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961). The court then found that the looms' removability was adequately demonstrated by the evidence.

We agree with the Appellate Division that compensability for the looms is not dependent upon a determination of whether they would be regarded as fixtures in other contexts. We disagree, however, that the test for compensation of the looms is their removability.

Article I, par. 20 of the New Jersey ...


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