Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
Defendants appeal from three orders of the Law Division, entered in connection with these condemnation proceedings commenced by the Turnpike Authority. The first two orders, made on April 5, 1968 by Judge Pashman, were based upon orders to show cause and/or motions. The third order was made by Judge Trautwein on October 4, 1968, following a plenary hearing.
Defendants' appeal as to the first interlocutory order of April 5, 1968, is limited to paragraphs (1), (2), (3) and (5) thereof. Paragraph (1) denies defendants' motion for leave to counterclaim for injunctive and other relief. Paragraph (2) strikes the answer of defendants Sisselman and Bergen County Associates, with the exception of such portions of the answer that raise issues of arbitrariness, oppressiveness and bad faith, as to which a plenary hearing was allowed. Paragraph (3) strikes the answer of defendant Borough of East Rutherford with the same exception applicable to paragraph (2), immediately above. Paragraph (5) provides that any construction or preparation of construction of a roadway by plaintiff on Sisselman or Bergen County Associates property after the date of actual full hearing, as provided in paragraph (4), shall be at the risk of plaintiff.
The other interlocutory order of April 5, 1968 denied a motion by defendants for an order compelling the taking of
oral depositions of the three Turnpike Authority commissioners.
Judge Trautwein's order of October 4, 1968 was made upon conclusion of a plenary hearing before the judge, sitting without a jury. Based upon the trial judge's oral opinion of September 18, 1968, defendants' motion to dismiss the Turnpike Authority's complaint on the grounds of arbitrariness, oppression and bad faith was denied; defendants' answers raising these questions were stricken, and judgment was entered appointing commissioners for the determination of an award of just compensation. The order contained the addendum that, in conformance with the court's order of April 5, 1968, all construction or preparation for construction of a roadway on the property of defendants, or any of them, up to and including the date of October 4, 1968, "shall have been without risk to the plaintiff."
We note preliminarily that the roadway in issue has been under construction unabated by any injunctive order during all the time in issue, and further construction progresses from day to day.
A summary of the litigation background seems to be in order. In July and August of 1967 the Turnpike Authority instituted condemnation proceedings to acquire two parcels of land in the Borough of East Rutherford, allegedly owned or controlled by defendants, the Sisselmans. The acquisitions were deemed necessary in the public interest for the purpose of building a highway spur from the existing Turnpike at Exit 15 to its northerly terminus, thus by-passing Exit 16, a principal outlet for traffic to and from the Lincoln Tunnel. Such a project was expressly authorized by the Legislature. N.J.S.A. 27:23-23.2, L. 1966, c. 6, § 1, effective February 16, 1966.
In its declaration of taking and pursuant thereto and complaint filed, the Authority deposited into court $286,800 for one of the parcels and $93,000 for the other. The acquisitions of defendants' two parcels were deemed necessary by the Authority because the established alignment of this
highway spur required construction of two bridges over Berry's Creek Canal, thus involving the lands in question. These bridges would form an integral part of the planned additional spur.
Defendants contested the Authority's condemnation proceedings. They filed an answer in September 1967 in which they set forth the following separate defenses:
1. The proposed taking was arbitrary.
2. The Turnpike Authority had no power to take the land in question.
3. N.J.S.A. 27:23-1 et seq. , creating the New Jersey Turnpike Authority and defining its powers and responsibilities, under which the Authority acted in the instant case, is an unconstitutional delegation of power.
4. The proposed taking violates 33 U.S.C.A. § 401 et seq.
5. The Authority failed to comply with the requirements of N.J.S.A. 40:55-1.13.
6. The complaint failed to state a claim upon which relief could be granted.
7. The complaint was insufficient in law.
In October 1967 defendant sought leave to counterclaim for dismissal and for an injunction against further condemnation proceedings on the grounds enumerated in numbers 4 and 5 above.
We need not detail the various other legal amendments, orders to show cause, motions and affidavits during the following months, all of which led up to hearings before Judge Pashman as to the substantive validity of defendants' answer and proposed counterclaim. Apparently, defenses numbered 2, 3, 6 and 7 had been abandoned. They have not been argued before us. The argument was limited to, and Judge Pashman's decision of January 17, 1968 was concerned only with, defenses numbered 1, 4 and 5. Defenses 4 and 5 were dismissed for reasons hereinafter ...