Long, J.c.c. (temporarily assigned).
In this condemnation case, defendant Wildlife Preserves, Inc., the owner of the land affected, resisted the condemnation on the ground that the premises in question were already devoted to a prior public use and were therefore not subject to condemnation by plaintiff. Defendant filed an answer to this effect and plaintiff moved to strike the answer on the ground that it failed to state a valid defense.
The answer sets up the defense as follows:
"1. Defendant is a non-profit, tax exempt and eleemosynary corporation engaged in the acquisition of land for conservation and preservation of wildlife, and related charitable, scientific and educational purposes. Its operations are affected with a public interest.
2. The right-of-way sought by plaintiff would cut across a large tract, known as 'Troy Meadows,' which has been acquired by defendant for the aforesaid purposes, and would cause substantial and irreparable damage by disturbing the natural habitat of animals and destroying the flora and fauna.
3. An important public interest will be adversely affected by exercise of the right of eminent domain. The damage caused thereby will outweigh the loss to plaintiff and the public by denial of the right to condemn along the route proposed by plaintiff. Since an alternate route is at plaintiff's disposal, no appreciable public purpose would be served by granting the relief sought by plaintiff."
In defendant's brief it states the issue and its proposed proofs as follows:
"The issue is very narrow. Succinctly stated it is whether this plaintiff, with an admitted general right to take property by the exercise of eminent domain, may nevertheless take the property of
this defendant which is already devoted to public use. The court has directed the filing of this memorandum to determine whether there is any legal basis for the introduction of evidence by defendant to contest the right to take before commissioners are appointed.
This defendant will, if given the opportunity to do so, present proof that it is a duly organized New Jersey corporation, not for profit, pursuant to the statutes of that state, that it purchased the tracts in question for the purpose of devoting them to conservation and that it has in fact so devoted them and intends to continue to so devote them. It will also offer proof that these tracts have in fact been leased to the Fish and Wildlife Service of the Department of the Interior of the United States Government and that that Department is presently devoting these lands to conservation purposes. It will also offer proof to show that a number of easements have already been taken across its lands for the purpose of other utility lines, that the taking of this additional easement will have a severe adverse effect upon the ecology of the land and its adaptability to conservation purposes, that the route of the proposed pipeline will cross over and destroy certain topographical features which are extremely important to the successful devotion of this land to conservation purposes and that it has, entirely without prejudice, offered to the plaintiff an alternate route which would not have such adverse effect."
This court is not prepared to hold, as contended by plaintiff, that the doctrine of prior public use applies only where the landowner who claims the benefit of the doctrine has the power of condemnation itself. However, something more must appear than a voluntary devotion of the premises to a use which is beneficial to the public or which, under certain circumstances, could be a use for which the power of eminent domain could properly be authorized by the Legislature. The mere fact that the property is actually being used for a public purpose or for a purpose for which a public body could be granted the power of eminent domain would not prevent a duly authorized corporation from condemning the property for that specific purpose. City of Trenton v. Lenzner, 16 N.J. 465, 470 (1954). The point is that the "public use" which would prevent condemnation must be a use to which the public, or some portion thereof, is legally entitled and to ...