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State v. Stark

Decided: May 10, 1967.

STATE OF NEW JERSEY, BY THE STATE HIGHWAY COMMISSIONER, PLAINTIFF-APPELLANT,
v.
PHILIP STARK AND MAX STARK, ALSO KNOWN AS MARK M. STARK, AS CO-PARTNERS, ET AL., DEFENDANTS-RESPONDENTS



Pashman, A.j.s.c.

Pashman

This is a motion by the State to dismiss an appeal taken by it in a condemnation proceeding.

Pursuant to the provisions of N.J.S.A. 20:1-1 et seq., the court appointed commissioners in this matter. On May 13, 1966 the commissioners awarded the sum of $269,680 to defendants for the taking of their property for public use by plaintiff. Plaintiff appealed from this award. Notice of that appeal was served upon defendants contemporaneously with service of the commissioners' report. On August 26, 1966 a panel of struck jurors was selected for the trial of plaintiff's appeal. The trial has been adjourned on numerous occasions up to the present time. No appeal or cross-appeal from the commissioners' award was taken at the time by defendants.

The issue in the case at bar arises from plaintiff's decision not to proceed with its appeal. Defendants contend that plaintiff has no right to dismiss such an appeal.

The prosecution of eminent domain actions in New Jersey is a two-step procedure. The first step has been completed here. It is an action at law for the appointment of commissioners, who are to make a just and equitable appraisement of the subject property. All issues raised as to the right to exercise the power of eminent domain and other preliminary matters are raised at this stage.

The second step in the procedure allows an appeal to be taken by parties in interest to the Superior Court from the commissioners' report, with the right to jury trial upon demand. The appeal is severed from the original action, and being separately docketed, it constitutes a de novo trial on the issue of the amount of compensation to be paid by the condemnor and results in a money judgment, which is subject to the same right of further appeal as any other judgment. As was stated by the court in State by & through Adams v. New Jersey Zinc Co., 40 N.J. 560 (1963), this second step is a permissive one.

The rule governing the second stage of the condemnation procedure is R.R. 4:92-6, which coincides with N.J.S.A. 20:1-16. R.R. 4:92-6 provides:

"(a) An appeal from the report of the commissioners shall be taken by filing a notice of appeal not later than 10 days after the date fixed for the filing of their report or after the service of a copy of such report by any party upon parties or persons in possession and parties who have an interest in each tract or parcel involved in the appeal and who shall have appeared personally or by attorney before the commissioners, whichever time is the earlier, but on application of any party the court may, for good cause shown, extend the time for not more than 30 days. The appellant in the notice of appeal may make a demand for a jury trial. If no such demand is made by the appellant, any other party may within 10 days after the service of such notice of appeal file a demand for a jury trial. The notice of appeal shall also include notice of an application for an order fixing the date of trial."

The Eminent Domain Act and our rules of court do not contain provisions specifically allowing or prohibiting dismissals of condemnation appeals once they have been undertaken. A statute, N.J.S.A. 20:1-30, permits the abandonment of

condemnation proceedings on terms within a specified time. It reads as follows:

"Any action or proceeding under this chapter may be abandoned at any time before the filing of the report of the commissioners, or within twenty days thereafter, or in the event of an appeal therefrom, before the entry of the judgment on the appeal or within twenty days after the entry thereof, provided there is paid to the owner and any other party who appeared in the action or proceeding, their reasonable costs, expenses and attorney fees as determined by the court, and provided a discharge of the notice of lis pendens is filed * * *".

N.J.S.A. 20:1-30 is not applicable to our situation. In the abandonment situation, the State relinquishes all claims to the land, i.e., it no longer desires what it originally wished to obtain. In the case at bar, plaintiff does not seek to abandon all proceedings. It still seeks to retain defendants' lands, which it considers essential for public purposes. Plaintiff at this time merely desires to avoid the necessity of a trial on appeal by withdrawing its objections to the award.

Since there are no specific provisions in support of plaintiff's motion to dismiss its appeal, plaintiff relies upon the general provisions of R.R. 4:42-1(b), which reads:

"Except as provided in Rule 4:42-1(a), an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice."

Defendants contend that R.R. 4:42-1(b) is not specifically applicable to condemnation proceedings. They further argue that once an appeal has been filed in condemnation matters, there is no right of dismissal over the objection of a landowner. The only method which would then be available to determine the amount due to defendants ...


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