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State v. Azzolina Land Corp.

Decided: May 21, 1968.


Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.


[101 NJSuper Page 105] The State appealed from an award by condemnation commissioners of $134,800 to defendant

for its damages consequent upon the taking by the State of certain property on the east side of Route 35 for road building purposes. The trial jury fixed damages in the sum of $38,500, and defendant appeals, asserting error in several of the trial judge's rulings and prejudice arising from his manner of conducting the trial.

Certain exclusions of evidence proffered by defendant and the court's restriction of defendant's cross-examination of plaintiff's principal expert witness had the cumulative effect, in our judgment, of undue prejudice to defendant's case and require a reversal and new trial.

Defendant owned a 24.3-acre tract of land which fronted on the highway, prior to the taking, to the extent of about 500 feet. The State condemned three parcels, the largest of which was an irregularly shaped piece on the highway of about 0.55 acres with 240 feet of highway frontage, intended to be used by the State as a "jughandle" for a highway crossing. The other two pieces taken were strips of insignificant size.

There was a good deal of confusion at the trial as to whether evidence of the per se value of the jughandle piece was admissible. The court ruled, during the examination of defendant's expert witness, Heller, that testimony of the value of the property taken was inadmissible, on the basis that the sole criterion of damages was the difference between the value before and the value after the taking, of defendant's entire landholding. It was defendant's position -- clearly a correct one -- that the measure of damages is either that just stated, or, alternatively, the value of the piece taken plus the diminution of the value of the remainder as a result of the taking. Sterner v. Nixon, 116 N.J.L. 418, 420 (E. & A. 1936). The witness Heller did later, however, in the course of explanation of his appraisal of the total damage from the taking as $147,000 ($635,000 before and $488,000 after), get into the record without objection his opinion of the value of the property taken as $75,000. In ultimately charging

the jury, moreover, the court gave the correct rule for ascertainment of damages as stated above.

Plaintiff's principal expert witness, Lazarus, arrived at an estimate a total damage from the taking of $15,500. In the course of explaining this on cross-examination the witness valued the 0.55-acre parcel taken, per se, at $5,500, a figure apparently based on his unit valuation of the large tract from which it was taken at $10,000 per acre. This approach contrasts with the general expert consensus that a small tract of highway frontage will ordinarily have a substantially larger unit value rate than a large tract, with considerable backland, inclusive of the frontage piece. (See the discussion, infra, of Lazarus' recent appraisal of the Russo property).

The per se value of the parcel here taken was unquestionably an important and directly relevant factor in the determination of defendant's damages. Plaintiff's witness Lazarus offered no sales of small highway pieces to aid the jury in appraising the weight of his valuation of the piece here taken at $5,500. His proffered comparable sales were all of comparatively large tracts, offered only to support his valuations of defendant's land taken in entirety.

Defendant's witness, Heller, on the other hand, did proffer three transactions involving small nearby pieces indicative, in his judgment, of the relatively higher unit value of highway frontage property in smaller parcels. One of these, the Chevron sale, reflected a value of $165,000 per acre. The court excluded this from evidence because the property was on a highway island, with frontage on both sides. Another, the Socony-Mobil sale, was at $155,000 per acre. This was excluded because the witness was not considering it in relation to the above-mentioned "before and after" test. This was clearly erroneous, as it bore on the per se value of the parcel taken, and, as indicated above, the parties are not restricted solely to the "before and after" approach. The third transaction, the Goldin lease, would have been analyzed by the witness to reflect a fee value of

$75,000 per acre.*fn1 This was excluded by the trial court because the witness did not have the original lease in his possession but only a copy. This was patently a mistaken exercise of discretion. Experts, in making appraisals, commonly rely upon copies of instruments deemed by them reliable. Cf. Delaware, L. & W.R.R. Co. v. City of Hoboken, 16 ...

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