Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
These are consolidated appeals.
On October 26, 1961 the State Highway Commissioner instituted proceedings to acquire by condemnation certain lands located at the intersection of Route 22 and Mountain Avenue in Bridgewater Township, Somerset County, for highway improvement purposes (an overhead crossing with connecting ramp). A condemnation commission, after hearing testimony, filed a report from which the Commissioner appealed, and the appellant Adele Speare, one of the landowners, cross-appealed. A struck jury in the Law Division subsequently awarded her $33,000 (with interest, $36,802.68). Following denial of her motion for a new trial, she filed the first of the present appeals.
While the appeal was pending before us, an order was entered remanding the matter to the trial court to permit the appellant to move for a new trial on the ground of newly discovered evidence. The motion was thereafter made and its denial is the basis of the second pending appeal.
The lands actually taken consisted of 3.64 acres out of a 12.55-acre tract owned by the appellant, located at the northeast corner of U.S. Route 22 and Mountain Avenue, having a frontage of 650 feet on Route 22. However, the Commissioner also sought to take temporarily two small parcels containing 2,620 and 2,840 square feet, respectively, for use during construction of the contemplated improvement, and to form and maintain slopes for grading along 1,592 feet of the remaining property of the appellant for an average depth of 24.88 feet, with the right of the landowner to remove said slopes upon furnishing adequate support or protection to the adjacent highway. The Commissioner also proposed to construct and permanently maintain two open ditches on appellant's remaining property, one 155 feet long and several feet wide, parallel to Route 22 and 20-25 feet distant therefrom, and the second 75 feet long and several feet wide, parallel to another portion of the land taken, 26-33 feet therefrom with ditch slopes adjacent to both ditches. He also sought the right to construct and maintain permanently a head wall, subsurface drains and appurtenances over the remaining land, and to fill in existing ditches thereon.
At the time of the taking the tract in question was located in an area which was zoned R-36, residential (one-family residences on 36,000 square feet). It had frontages of 882 feet on the north side of Route 22, 101.54 feet on both Route 22 and Mountain Avenue, and 1,216 feet on Mountain Avenue with access to and from all lanes of traffic on both highways. With respect to the remaining land, an acre or slightly less is encumbered by the slope easement referred to above. At the completion of the taking the appellant's frontage was diminished to 334 feet along Route 22 and 545 feet along Mountain Avenue. Two streams which had run through the property
were eliminated by being diverted into the highway drainage system. Appellant's land was generally about 3 feet below the grade of Route 22.
As to the first appeal, appellant urges that (1) the verdict of the jury was inadequate and contrary to the weight of the evidence; (2) the evidence does not support the verdict; (3) one of the jurors was not impartial, unprejudiced and free from improper influences, and (4) the trial court erroneously excluded relevant and admissible evidence bearing on the question of damages.
The newly discovered evidence upon which the application for a new trial was based consisted of evidence that (1) a judgment had been entered in the Law Division subsequent to the filing of the appeal which invalidated the provisions of the zoning ordinance restricting the use of the subject premises to residential, and (2) the remaining 8.91 acres of the appellant's tract had been sold, subsequent to the trial, for $89,100 cash. The denial of the motion for a new trial is asserted to constitute an abuse of discretion which requires reversal.
A landowner whose property is taken for public use is entitled to just compensation. N.J. Const. 1947, Art. I, par. 20. Where the whole is taken this would amount to the fair market value of the property as of the date of taking, determined by what would be agreeable as between a willing seller and a willing buyer, neither being under any compulsion. State by State Highway Com'r. v. Gorga, 26 N.J. 113 (1958); State by State Highway Com'r. v. Burnett, 24 N.J. 280 (1957); City of Trenton v. Lenzner, 16 N.J. 465 (1954), certiorari denied 348 U.S. 972, 75 S. Ct. 534, 99 L. Ed. 757 (1955); Tennessee Gas Transmission Co. v. Maze, 45 N.J. Super. 496 (App. Div. 1957). In the case of a partial taking, the measure is generally the difference between the market value of the property before the taking and the market value of the remainder after the taking. Port of New
York Authority v. Howell, 59 N.J. Super. 343 (Law Div. 1960), affirmed 68 N.J. Super. 559 (App. Div. 1961); Butler Hard Rubber Co. v. City of Newark, 61 N.J.L. 32 (Sup. Ct. 1897). The proximate effects of the taking must also be considered in ascertaining the value of the remaining land. Village of Ridgewood v. Sreel Investment Corp., 28 N.J. 121 (1958); Sterner v. Nixon, 116 N.J.L. 418 (E. & A. 1936); Mangles v. Hudson County Board of Chosen Freeholders, 55 N.J.L. 88 (Sup. Ct. 1892); cf. Monmouth Consolidated Water Co. v. Blackburn, 72 N.J. Super. 377 (Law Div. 1962).
At the trial in the Law Division there developed the usual diversity of opinion among the experts as to the value of the land taken and the damage to the remainder. The Commissioner's expert, Sidney Halpern, testified to a total of $27,110. He was of the opinion that the entire tract had a value of $62,750, and that after the taking of the 3.64 acres the remaining 8.91 acres still had a value of $4,000 per acre, or $35,640, leaving $27,110 as the net damage to the owner from the taking. The appellant called two experts, Carmine V. Pascarello and Daniel C. Hanrahan. Pascarello valued the lands taken at $115,500, and the damage to the remainder at $24,000, making a total of $139,500. Hanrahan was of the opinion that the damage amounted to $109,000, a figure arrived at by deducting the value of the acreage remaining, $32,000, from his opinion of the value of the entire tract, $141,000. The condemnation commissioners had awarded $36,695.
Appellant first urges that the verdict of the jury was inadequate and contrary to the weight of the evidence, and that her motion for a new trial based upon these grounds was erroneously denied. She contends that (a) the evidence as to value preponderated in her favor; (b) the use of certain comparable sales by the Commissioner's expert calls for a higher overall value, and (c) the opinion of the Commissioner's expert was based upon an unjustifiably restricted use of the lands in question.
On an application for a new trial, the trial judge may not substitute his judgment for that of the jury. Andryishyn v. Ballinger, 61 N.J. Super. 386, 394 (App. Div. 1960). Only when and if it "clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion" may the jury's verdict be thus set at naught. R.R. 4:61-1. In reviewing the ruling of the trial judge the scope of our review is even more limited, and the judge's action will not be disturbed unless it clearly and unequivocally appears that there has been an abuse of discretion on his part. Hartpence v. Grouleff, 15 N.J. 545 (1954); Fisch v. Manger, 24 N.J. 66 (1957); Kovacs v. Everett, 37 N.J. Super. 133 (App. Div. 1955), certification denied Kovach v. Kovacs, 20 N.J. 466 (1956). When, however, the action of the trial court is found to have been without basis in law or fact, or both, so that there has been a manifest denial of justice, reversal is called for. Hickman v. Pace, 82 N.J. Super. 483 (App. Div. 1964); Hartpence v. Grouleff, supra, at p. 548; Kulbacki v. Sobchinsky, 38 N.J. 435 (1962).
We are satisfied that the verdict rendered by the jury was not contrary to the weight of the evidence so as to justify a finding that it was the result of mistake, partiality, prejudice or passion. While all three experts were properly held to be qualified to give an opinion of value, the mere fact that two experts testified for the owner in opposition to one for the Commissioner was not dispositive. Equally as important as the experts' valuations were their reasons for ...