Goldmann, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.
In this condemnation proceeding defendants appeal from an order of the Law Division denying their motion "for an order directing the plaintiff to pay interest on a commission award * * *."
The facts are these: On March 21, 1962 plaintiff, pursuant to R.S. 20:1-1 et seq., R.S. 27:7-22, instituted condemnation proceedings against defendants who were the owners of certain vacant lands in Union County. Commissioners were appointed who, after a series of hearings, filed a report dated March 10, 1964 in which they awarded defendants $120,000 as the fair value of the subject property. On March 31, 1964 defendants filed a notice of appeal in the Law Division challenging the report of the commissioners, as provided in N.J.S.A. 20:1-16. Plaintiff asserts that it too filed an appeal on April 1, 1964. Defendants contend that the notice of appeal was not served upon them. In view of our determination of the case we deem the status of plaintiff's appeal to be of no consequence.
Thereafter, the parties through their attorneys entered negotiations looking toward the settlement of the litigation. Apparently, defendants claimed that plaintiff had taken actual possession of the lands at some time prior to the institution of the condemnation action, and thereby had become liable for the payment of interest upon the amount awarded in the commissioners' report. Plaintiff denied having taken possession and rejected the demand that it pay such interest.
The differences between the parties, as thus stated, were composed by the agreement of plaintiff to pay, and defendants to accept, the amount awarded by the commissioners, without interest. A stipulation of dismissal was entered on April 29, 1964 and the appeal was dismissed on May 5, 1964. On June 6, 1964 the principal sum of $120,000 was paid and accepted, and at that time the plaintiff came into actual possession of the lands.
Thereafter, defendants demanded that plaintiff pay them interest for the period between the report of the commissioners and the date of payment, and upon plaintiff's refusal to accede to this demand the present action was instituted. The matter came on for hearing on July 16, 1964, at which time defendants' motion was denied.
Initially, defendants argue that N.J.S.A. 20:1-13 "clearly gives a land owner the right to interest on the award made by the commissioners in a condemnation proceeding." This section of the Eminent Domain Act provides as follows:
"The report of the commissioners together with the order or judgment appointing them, or a copy thereof certified by the clerk of the court, shall be plenary evidence of the right of the owner of the land or other property taken to recover the amount awarded with interest and costs, in the action or in an action in any court of competent jurisdiction to be instituted against the plaintiff after failure to pay the same for twenty days after the filing of the report, and shall from the time of filing the report be enforceable as a lien upon the land or property taken and any improvements thereon." (Emphasis added)
Plaintiff counters with the argument that N.J.S.A. 20:1-13 applies only to a situation in which (a) no appeal has been taken within the 20-day period, or (b) the condemnor has not abandoned the condemnation proceeding within 20 days after the filing of the commissioners' report (see N.J.S.A. 20:1-25). Plaintiff contends that where an appeal has been taken within the 20-day period specified by N.J.S.A.
20:1-13, that section becomes inoperative and the provisions of N.J.S.A. 20:1-25 govern. N.J.S.A. ...