Goldmann, Lewis and Matthews. Goldmann, P.J.A.D.
Plaintiff appeals a Law Division judgment awarding defendants $25,000 in condemnation following a jury trial.
On November 10, 1967 the Commissioner of Transportation instituted condemnation proceedings, and on that day filed a declaration of taking and an order for payment into court of the estimated value of the taking, $1,850. That amount was deposited with the clerk of the court. Lis pendens
was filed November 13 and defendants received a copy of the declaration of taking on November 17.
The property to be taken is described in an exhibit attached to the complaint. The State sought condemnation of a 45' X 14' strip along Clifton Avenue, running from Route 37, together with a slope easement adjacent thereto ranging from 3' to 6' in depth. The slope easement included the right to top-soil, seed, plant trees, vines and shrubs, and to maintain the same so as to stabilize the soil, prevent erosion and improve the aesthetic aspects of the highway. The description of the strip and slope was contained in the declaration of taking as well as in the lis pendens.
The condemnation commissioners fixed the value of the taking, including damage to the remainder of defendants' property, at $18,000. The State appealed and demanded a jury trial. Just prior to trial counsel for the Commissioner of Transportation moved to amend the complaint, as well as the map attached thereto, by altering the slope easement provision so as to show that defendant owners would have access to and from Clifton Avenue. Defendants opposed the attempted amendment, claiming it had come too late and that the taking had been consummated by the procedures followed by the Commissioner. The judge required the filing of a formal motion. The owners opposed the motion on the grounds just mentioned, as well as for the reason that the only matter to be determined by the jury was the amount the State had to pay for the taking described in the complaint. The motion was denied. The jury trial followed, resulting in an award of $25,000.
On this appeal the State argues that a fair and just settlement required that the State be permitted to amend its complaint to conform to the Commissioner's intent as shown in the detailed construction plan, and "to clear up any possible ambiguity concerning the easement rights being acquired." It argues that amendments are freely given when justice requires, and that in passing upon a motion to amend,
the trial judge must exercise sound judicial discretion in light of the factual situation then existing.
The detailed construction plan was never made known to defendants but remained in the files of the Department of Transportation. Although that plan indicated there would be curb cuts which would have allowed ingress and egress to and from Clifton Avenue, neither the plan attached to the complaint nor the description contained in the exhibit attached to that pleading show such cuts. It is obvious that whoever prepared the description did not employ language which would have clearly informed defendants of the curb cuts appearing in the construction plan prepared by the Commissioner.
In the interests of justice, the State should have specified that there would be access from Clifton Avenue. In Mueller v. N.J. Highway Authority , 59 N.J. Super. 583 (App. Div. 1960), this court observed that
Where property is conveyed to or condemned by a governmental authority for general highway purposes, such conveyance or condemnation does not preclude or extinguish the abutting owner's right of access onto that highway unless the taking instrument expressly indicates a contrary intention or unless it can be said that the abutting owner's loss of access rights was within the contemplation of the parties at the time of ...