For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[48 NJ Page 265] The plaintiff Texas Eastern Transmission Corporation seeks to acquire by condemnation a right of way across four tracts of land in Morris County, New Jersey. These tracts are part of Troy Meadows Wildlife Preserve, an area of over 1400 acres maintained by defendant Wildlife Preserves. The proposed right of way is to be used for installation of an underground gas transmission pipeline. Answering the complaint, defendant alleged that the lands were devoted to a prior public use, i.e. conservation and the preservation of wildlife, and in the circumstances not subject to condemnation for plaintiff's purpose. The answer alleged also that the damage to the lands in their present public use would outweigh any loss plaintiff would suffer through denial of the right of way, and since an alternate route is "at plaintiff's disposal" no proper public purpose
would be served by authorizing the sought-for taking. The trial court on motion struck the answer as insufficient in law, and appointed commissioners to fix the value of the right of way to be taken. 89 N.J. Super. 1 (Law Div. 1965). The Appellate Division affirmed for the reasons expressed by the trial court, 90 N.J. Super. 385 (App. Div. 1966), and we granted defendant's petition for certification to review the matter. 47 N.J. 91 (1966).
Texas Eastern is a pipeline and natural gas company within the meaning of the Natural Gas Act, 15 U.S.C. § 717 et seq., and is engaged in the interstate transmission of gas through pipelines. As such, it obtained a Certificate of Public Convenience & Necessity from the Federal Power Commission authorizing construction of a pipeline from its terminus near Hanover, New Jersey, to a point near Wanaque, New Jersey. Texas Eastern Transmission Corporation, et al., 30 F.P.C. 1559 (1963). The certificate neither authorized nor prescribed a particular route for the pipeline between the two points; nor did it fix the width of the right of way to be acquired for the purpose. The course through defendant's lands and its 50-foot width were selected by plaintiff. (The record indicates that during these proceedings plaintiff agreed to reduce the width to 30 feet.) There is no doubt that, by virtue of the Federal Power Commission certificate, plaintiff may proceed to acquire land necessary for the pipeline by the exercise of eminent domain whenever it cannot be procured by contract or agreement as to purchase price. 15 U.S.C. § 717 f (h).
Defendant Wildlife Preserves is a private, nonprofit, eleemosynary corporation organized under R.S. 15:1-1 et seq., and is engaged in the acquisition of lands and their devotion to conservation and preservation of wildlife. It is undisputed that the lands involved here are devoted to such use. There is regrettable confusion in the record as to whether Wildlife Preserves is presently the owner of the premises in question or a lessee to which title will pass on termination of the lease. It is unclear also whether Wildlife
Preserves has leased the premises to the United States as a preserve. However, the United States, although aware of this proceeding, has not intervened, and we shall assume it has no active interest in the proceedings. Moreover, since Wildlife Preserves asserts ownership in its brief in this Court we shall assume for purposes of reaching the merits that ownership in fact exists.
There is no doubt that the statute, 15 U.S.C. § 717 f(h), under which plaintiff is empowered to condemn land and interests therein for pipeline installation purposes, represents a constitutional exercise of the Congressional power to regulate interstate commerce. Thatcher v. Tennessee Gas Transmission Co., 180 F.2d 644 (5 Cir. 1950), certiorari denied 340 U.S. 829, 71 S. Ct. 66, 95 L. Ed. 609 (1950). Nor can it be doubted that the authorization encompasses even the taking of lands devoted to another public use, if the taker's use is necessary to accomplish a public purpose, and that purpose is paramount, either by express language of the statute or by necessary implication therefrom. See, Weehawken Tp. v. Erie Railroad Co., 20 N.J. 572, 578-581 (1956); Public Utility Dist. No. 1 v. Federal Power Comm'n, 113 U.S. App D.C. 363, 308 F.2d 318 (D.C. Cir. 1962), certiorari denied 372 U.S. 908, 83 S. Ct. 719, 9 L. Ed. 2 d 716 (1963), rehearing denied 372 U.S. 956, 83 S. Ct. 950, 9 L. Ed. 2 d 980 (1963); State of Washington, Department of Game v. Federal Power Comm'n, 207 F.2d 391 (9 Cir. 1953), certiorari denied 374 U.S. 936, 74 S. Ct. 626, 98 L. Ed. 1087 (1954); State of Missouri ex rel. and to Use of Camden County v. Union Electric Light & Power Co., 42 F.2d 692 (D.C. Mo. 1930); Vermont Hydro-Electric Corporation v. Dunn, 95 Vt. 144, 112 A. 223, 12 A.L.R. 1495 (1921); Jahr, Eminent Domain 37 (1953); 1 Nichols, Eminent Domain § 2.2 p. 205 (3 d ed. 1964); 26 Am. Jur. 2 d, Eminent Domain § 95 (1966).
Defendant is not a public agency or a public utility; it is a private enterprise carried on by a public-spirited nonprofit organization for the purpose of preserving our natural
wildlife resources. It has no federal or state power to acquire the lands it devotes to such object by condemnation; the acquisition must be by private means or methods. Under these circumstances, we are satisfied that Wildlife is not qualified under the prior public use doctrine to demand a determination whether such use may be subordinated to plaintiff's public use by means of condemnation. And even if it were, to deny plaintiff its statutorily granted right to condemn a necessary portion of defendant's property for a pipeline right of way would defeat the functions of the national government and run contrary to the intent of Congress as expressed in the Natural Gas Act. Cf. Public Utility Dist. No. 1 v. Federal Power Comm'n, supra; State of Washington, Department of Game v. Federal Power Comm'n, supra; State of Missouri ex rel. and to Use of Camden County v. Union Electric Light & Power Co., supra, 42 F.2d, at p. 698.
But that view does not end the case. Defendant's voluntary consecration of its lands as a wildlife preserve, while not giving it the cloak of a public utility, does invest it with a special and unique status. Qualitatively, for purposes of the present type of proceeding, the status might be described as lower than that of a public utility but higher than that of an ordinary owner who puts his land to conventional use. Unquestionably, conservation of natural resources can and would become a legitimate public purpose if engaged in by the federal or state government or an authorized agency thereof. At both planes of government a sympathetic concern has been shown for such preserves, and acquisition of such resources with public money by eminent domain and otherwise has been authorized. See, statutes relating to "wildlife restoration" projects, 16 U.S.C.A. § 669 et seq.; N.J.S.A. 23:12-1; 13:14-1 et seq., and protection of game and bird preserves, 16 U.S.C.A. §§ 671-697a; Pearl River Valley Water Supply District v. Brown, 248 Miss. 4, 156 So. 2 d 572, 158 So. 2 d 694 (Sup. Ct. 1963); State ex rel. North Carolina Utilities Comm. v. Story, 241 N.C. 103, 84 S.E. 2 d 386 (Sup. Ct. 1954). Under the circumstances, and although plaintiff's
right to condemn land in this area for the pipeline is clear, we believe, for additional reasons to be stated, that Wildlife Preserves is entitled to have a plenary trial of its claim that a satisfactory alternate route is available to plaintiff ...