[98 NJSuper Page 387] This matter is before the court on plaintiffs' motion to transfer the action to the Law Division. The complaint sought an injunction against defendants to prevent them from proceeding with contemplated construction on State Highway 35. It was alleged that the State Highway Department had obtained from plaintiffs a deed for a three-foot strip running along State Highway 35 upon representations that the elevation of the highway would not be changed. When work was commenced by Manzo Contracting Co. under contract with the Department of Transportation, it became apparent that not only would the highway be widened but the elevation in front of plaintiffs' premises was to be raised approximately three feet. The complaint charged that if defendants were permitted to proceed with such construction, a serious flooding condition would be caused, access to the plaintiffs' premises would be seriously curtailed and an existing parking area located in front of plaintiffs' buildings
would be eliminated. An application for a preliminary injunction was denied. Thereafter, by leave of court, plaintiffs amended the complaint to add a prayer for relief in lieu of prerogative writs to compel the Department of Transportation to institute condemnation proceedings "in order to determine the fair and reasonable value of the lands unlawfully taken * * *."
Defendants join in plaintiffs' request for a transfer of the action to the Law Division.
It is admitted by plaintiffs that the Department of Transportation has the right to take the lands in question upon payment of compensation. State v. Maas & Waldstein Co., 83 N.J. Super. 211 (App. Div. 1964). By their amended complaint plaintiffs are complaining of the failure of the Department to condemn and seek to compel the Department to institute proceedings to condemn the lands taken in excess of those conveyed by the deed. Therefore, upon the filing of the amended complaint, it became clear that the Chancery Division did not have jurisdiction to hear and determine the action, the relief sought being historically obtainable by prerogative writ. Brown v. Murphy, 136 N.J.L. 183 (E. & A. 1947); Gould v. State Highway Com'r., 112 N.J. Eq. 389 (Ch. 1933). Here plaintiffs do not have alternative remedies such as were available to plaintiffs in Bailey v. Driscoll, 34 N.J. Super. 228, 243-246 (App. Div. 1955), affirmed as to procedural determinations, reversed on substantive issues 19 N.J. 363 (1955). It is clear that the relief sought by plaintiffs is only obtainable by a proceeding in lieu of prerogative writs under R.R. 4:88. The question is whether this court should transfer the action under R.R. 1:27D to the Law Division to be proceeded with under R.R. 4:88-2, or to the Appellate Division to be proceeded with under R.R. 4:88-8.
The defendants argue that because the Department of Transportation does not adjudicate or make rules insofar as condemnation is concerned, it is not a "state administrative agency" for the purpose of R.R. 4:88-8.
R.R. 4:88-8 applies to all state administrative agencies. It is not limited by its terms to those agencies which adjudicate or make rules. The Department of Transportation was established "in the executive branch of the state government" as a principal department. N.J.S. 27:1A-1. It succeeded to all the functions, powers and duties of the State Highway Department and of various other agencies. N.J.S. 27:1A-3. The Department of Transportation is a state administrative agency.
"In 1948 this court adopted its implementing rules which sought to avoid the problems of the prerogative writ practice and to provide simple and expeditious modes of judicial review from administrative action and inaction. The rules perpetuated none of the former procedural distinctions resting on the nature of the relief sought and their wholesome design was clear; they contemplated that every proceeding to review the action or inaction of a local administrative agency would be by complaint in the Law Division (R.R. 4:88-2; see Baldwin Constr. Co. v. Essex Co. Bd. of Taxation, 27 N.J. Super. 240, 242 (App. Div. 1953)) and that every proceeding to review the action or inaction of a state administrative agency would be by appeal to the Appellate Division. * * *" (at pp. 184-185)
In DeNike v. Board of Trustees, etc., Retirement System, 62 N.J. Super. 280 (App. Div. 1960), affirmed 34 N.J. 430 (1961), the Appellate Division held that the distinction between the jurisdiction of the Law Division and of the Appellate Division in proceedings in lieu of prerogative writ was as follows:
"Under our present practice, the Law Division and the Appellate Division each has jurisdiction over all such cases, no matter by what writs they would have been prosecuted at common law, the only difference being that if the defendant is a state agency, plaintiff should proceed in the Appellate Division, by appeal under R.R. 4:88-8 or for declaratory judgment under R.R. 4:88-10, while against all other agencies he must sue in the Law Division. In other words, regardless of the essential sameness of the ...