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State v. Totowa Lumber & Supply Co.

Decided: July 13, 1967.

STATE OF NEW JERSEY, BY STATE HIGHWAY COMMISSIONER, PLAINTIFF-RESPONDENT,
v.
TOTOWA LUMBER & SUPPLY COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

This is a condemnation case in which defendant appeals from a judgment of the Law Division in favor of plaintiff ordering the appointment of commissioners to appraise the value of a portion of defendant's land to be taken in condemnation by the State Highway Commissioner (State) in connection with the construction of Route 80 in the Borough of Totowa.

Before condemnation defendant owned 3.8 acres of land, triangular in shape, with an 800' frontage on River View Drive. Route 80 is planned to run east and west, perpendicular to River View Drive. Defendant does not contest the taking of that parcel of its land designated as No. 104, comprising .028 acre with a 67' frontage. In dispute is the right to condemn No. 104B, an adjoining segment of .061 acre and an 80' frontage, which lies outside the access right of way of the highway.

Union Building and Construction Corporation (Union) owns ten acres of land which would be divided by the highway. Condemnation left Union a two-acre tract north of the highway and about four acres to the south. This latter tract would be landlocked if not given access through defendant's land, since all of Union's frontage on River Drive is to be taken by the highway and defendant's land would lie between it and the road.

Original negotiations between the State and defendant were confined to parcel No. 104 and a tentative agreement with respect thereto was reached in January 1965. It was not until July of that year that the State proposed to acquire No. 104B. The State's offer of $2,300 therefor was refused and that sum has been deposited in court. It is conceded that the proposed condemnation is solely for the purpose of unlocking Union's property.

By agreement of December 16, 1965 the State contracted to pay Union $163,000 for land taken and to build a 25' wide access road from River View Drive over parcel No. 104B which the State would acquire. This road would extend

130', 75' of which would be within Union's retained property and the balance within defendant's property. The State would maintain the latter portion and Union would maintain the balance. The construction costs of the road, including paving, would be $2,733. Adding this to the $2,300 proposed to be paid to defendant for its land, the total costs of the access road would be $5,033.

Defendant's primary contention is that the State cannot take (by condemnation) the disputed parcel of defendant's land to provide Union with what it describes as a private driveway, usable only by that corporation. Defendant argues that to allow this result would be to take private property for private use. It further contends that the State has abused its discretion in this regard.

It is not disputed that a taking of private property for private use is illegal. The question here is whether the proposed use of parcel No. 104B is public or private.

As said by Judge Goldmann in Essex County v. Hindenlang, 35 N.J. Super. 479 (App. Div. 1955), appeal dismissed 24 N.J. 517 (1957):

"Courts dealing with problems of eminent domain have generally been reluctant to define the phrase 'public use.' * * * [T]hey have recognized that the phrase 'is incapable of a precise and comprehensive definition of universal application.' * * * Judicial attempts to describe the subjects to which the expression 'public use' would apply have proceeded on two different theories. One theory of 'public use' limits its application to 'use by the public' -- public service or employment. * * * Courts that take the broader and more liberal view in sustaining public rights at the expense of property rights hold that 'public use' is synonymous with 'public benefit,' 'public advantage' or 'public utility.'"

We have adopted the liberal view as to the meaning of "public use." State Highway Com'r, State by v. Davis, 87 N.J. Super. 377 (App. Div. 1965), certification denied, 46 N.J. 135 (1965); State Highway Commissioner v. Buck, 94 N.J. Super. 84 (App. Div. 1967). In Davis the complaining landowner was one of several ...


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