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State v. Wemrock Orchards Inc.

Decided: May 4, 1967.


Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.


[95 NJSuper Page 27] The State of New Jersey, Department of Conservation and Economic Development, appeals from an order denying its motion for a new trial, and from the final judgment of the Law Division, based upon the verdict of the jury, awarding defendant property owner, Wemrock Orchards, Inc., $450,000 for so-called parcel 2, acquired

by the State through condemnation proceedings under its "Green Acres" program.

The State condemned two parcels owned by Wemrock Orchards, Inc., and located in the Townships of Manalapan and Freehold, in Monmouth County. Parcel 1 consisted of 12.972 acres for which, with the improvements thereon, the jury awarded $37,000. Neither side challenges the propriety of that award. Parcel 2 consists of 174.618 acres of unimproved land upon which there were some apple trees. The jury fixed the value of this larger parcel at $450,000.

In its motion for a new trial the State contended, as it does here, that this verdict as to parcel 2 was contrary to the weight of the evidence, grossly excessive, inconsistent on its face with the evidence, and based on mistake, partiality, prejudice or passion. Unquestionably, if the verdict herein was so tainted, the trial court should have set it aside and ordered a new trial -- and so should we, if the trial court erred in failing to do so. R.R. 1:5-3(a); R.R. 2:5; R.R. 4:61-1(a).

The State relies essentially upon the fact that the award of $450,000 was more than $100,000 in excess of the highest appraisal of the value of parcel 2 as testified to by all four real estate appraisal experts who appeared at the trial. The trial record clearly supports this assertion. The State's two expert witnesses, Cornelius Guiney, Jr. and Ben Alpern, appraised parcel 2 at $191,301 and $200,000 respectively. Wemrock's two experts, Kenneth Walker and F. Leroy Garrabrant, set its value at $300,000 and $349,200 respectively. Thus, the highest value placed upon this acreage by any of the four expert witnesses -- and that was by the property owner's expert -- was more than $100,000 less than that fixed by the jury.

All four experts used only the "comparable sales" approach in arriving at a per acre valuation and ultimate opinion as to parcel 2. Obviously, the other two common valuation methods -- reproduction cost less depreciation and capitalization of net income -- were not appropriate herein

or employed. Based solely, therefore, on alleged comparable sales, Guiney's per acre valuation was $1,100; Alpern's, $1,150; Walker's, $1,700; and Garrabrant's, $2,000. All experts agreed that the highest and best use of this property economically was for residential development purposes. The land had been used for an apple orchard, but most of it had been cleared. A 100-foot-wide railroad right of way traverses the property near the road frontage.

In denying the State's motion for a new trial, the trial court observed that the land in question had "uniqueness" because of historical significance, it being conceded that this property was part of the site of the famous Battle of Monmouth. In fact, the State was acquiring it under its "Green Acres" program for that reason, among others. This historical significance, in the trial court's view, gave these lands "an added competitive advantage over surrounding lands to the State and the developers." Their "historical significance" was assumed to be the factor which influenced the jury to return its verdict in an amount substantially in excess of the highest appraisal of the experts -- that offered by the property owner's expert. The trial court discounted the possibility that additional compensation had been given for interference with the owner's apple orchard business, noting that the jury had been cautioned and instructed that interference with the owner's business was to play no part in its verdict. It concluded that "historical significance" was a proper element to be considered by the jury in arriving at its award. For that reason, the State's motion to set aside the verdict and to order a new trial was denied.

There are two difficulties with this rationale. First, none of the experts testified as to the effect, if any, upon the land's value due to its association with the Battle of Monmouth. We have no doubt that such testimony would have been proper. But none was offered. In fact, no expert referred to or based his opinion on this historical factor in any way. "If the market value of the land has been enhanced by reason of its patriotic or historic associations, that is * * *

an element to be considered, as if there were an open mine upon it, or any other matter of a similar nature had contributed to increase its value." Five Tracts of Land, etc. v. United States, 101 F. 661, 663 (3 Cir. 1900). This does not mean that a jury may arbitrarily, unaided by any expert opinion and without any supporting evidence, place its ...

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