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State v. Davis

Decided: April 29, 1965.

STATE OF NEW JERSEY, BY THE STATE HIGHWAY COMMISSIONER, PLAINTIFF-RESPONDENT,
v.
ALBERT S. DAVIS, JR., MARY ELIZABETH DAVIS, ET AL., DEFENDANTS-APPELLANTS



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Defendant property owners appeal from an order of the Superior Court, Law Division, appointing condemnation commissioners to appraise a portion of their lands in Bridgewater Township, taken by the State of New Jersey for use by the State Highway Commissioner in the construction of a "frontage" or "access" roadway.

Defendants contend that the roadway, which, admittedly, has already been built by the State, was for a private rather than a public use and, therefore, not subject to the State's power of eminent domain. New Jersey Constitution (1947), Art. I, par. 20. The State does not dispute the basic principle that the right of eminent domain does not extend to the taking of private property for private use. "The Legislature has no right to take the property of one man and give it to another even upon compensation being made." Scudder v. Trenton Delaware Falls Co., 1 N.J. Eq. 694, 726 (Ch. 1832). Was the roadway in question built to serve a private use only, as defendants contend, or to serve a public use, as the State maintains and as the Law Division found? That is the sole issue before us.

In the construction of Interstate Highway 287 the State acquired from defendants for use by the State Highway Commissioner in the construction of this freeway a parcel, designated on the map as R67a. No dispute is made herein as to the propriety of the State's acquisition of that parcel which actually constitutes part of the right of way of Highway 287.

The issue herein relates rather to another portion of defendant's property, about .255 acre of vacant land designated on the map as 2R67b and used by the State, in conjunction

with lands acquired from other owners, to build a roadway extending from an existing public highway, known as Garretson Road upon which defendants' property fronts, northerly over the lands of these defendants and continuing northerly over the properties of James Young and a subdivision laid out by Accurate Construction Co. to a point at the boundary line between two tracts of land also owned by Accurate Construction Co. but not yet subdivided. Defendants' parcel is only a relatively small part of this entire access road.

The construction of Highway 287, to which there is no access from the lands adjacent thereto at the point in issue, had caused some of these adjacent lands, which formerly fronted on Routes 202 and 206, to become landlocked. The purpose of the access road in issue was to free those large landlocked areas by giving them some frontage on a public road and furnishing them access over this newly built road to Garretson Road, whence they could proceed to other highways.

An analogous landlocked condition had been created by the State in constructing this freeway with reference to lands lying to the north of Accurate's undeveloped tracts, and to cure that situation the State has built a similar access road, extending southerly from Tolomini Road over the land of Ainsleigh Corporation to the landlocked tract of M & M Corporation, where it terminates. The M & M tract adjoins Accurate's property and both embrace substantial acreage. It is anticipated that in time both new road segments will be extended to a meeting point, thus forming a complete roadway link between Garretson Road on the south and Tolomini Road on the north.

We agree with the trial court's determination that the access road involved herein is for a public use and not merely to serve a private use. Defendants do not need it but will be able to use it, since it will make their remaining property, upon which they have a dwelling and garage, a corner plot. The road will service Young's property as well as Accurate's subdivided tract and the various owners who will presumably sooner or later be located thereon. It will also provide access

to Accurate's other large tracts beyond its subdivided land. Those other lands, though not presently subdivided, may be expected to become developed as the lands on either side of them undergo development. The only testimony in the case was that by John Matchett, an assistant district engineer in charge of location and design in the employ of the State, confirming that the road was constructed for public use and to provide access to the landlocked properties in the rear. Thus, it cannot be reasonably concluded here that the State merely took the property of one man for the private use of another. The roadway is open to the general public and is not limited to private use.

The number of present users of the road may not be great. However, its total effectiveness as a public road will be more fully realized when the several tracts fronting on it are developed, having been released from their landlocked condition, and this ...


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