[107 NJSuper Page 566] The Housing Authority of Hoboken appealed from the awards made by the duly appointed condemnation commissioners. The question of the value of the various parcels of property was submitted to the jury and it returned four separate verdicts, one for each of the parcels involved. This court then proceeded to compute and award interest on each of the verdicts. State By & Through v. Nordstrom , 54 N.J. 50 (1969). Partial final judgments thereon have been entered in each cause of action.
Counsel for the property owners also sought to have the Housing Authority assume the taxes assessed on these parcels, from the declaration of blight on September 20, 1967. Responsibility for the payment of such taxes under the circumstances is the issue to be resolved. Both sides submitted briefs and waived oral argument.
Evidence adduced at the trial indicated that the Housing Authority's appraiser examined the subject properties several years prior to the declaration of blight for the purpose of evaluation, specifically in 1964 and again in 1965 and in 1966. It was also shown that the owners were made aware of the intended condemnation in 1964 and that the project was imminent. Evidence further indicated that at various times since 1962 articles had appeared in local newspapers indicating that the area in which the subject properties were located was being considered for a project. On September 20, 1967 the City of Hoboken declared the area in which the said parcels were located to be a "blighted area." The complaint herein was filed on October 14, 1968, and a declaration of taking and deposit into court was made on April 17, 1969.
The present case appears to be one of first instance in New Jersey. Our State Constitution guarantees that a property owner shall receive just compensation when his property is taken by eminent domain. N.J. Const., Art. I, par. 20. At the trial of these appeals defendant owners contended that because the taking of the premises by the Housing Authority was imminent, they were unable to rent the subject buildings. Pursuant to R. 4:39-2 the court submitted to the jury a specific interrogatory on this question and the jury found this to be a fact. The jury thus decided that for all intents and purposes the subject properties were rendered incapable of producing any income and profit for the property owner by the imminent action of the Housing Authority. This determination by the jury was a finding of a constructive taking or appropriation of the properties by the Housing Authority as of September 20,
1967. Despite the fact that counsel for the Housing Authority now contends that this issue was barred by the pretrial order, nonetheless, it was litigated at trial and the pretrial order should thereby be amended accordingly. R. 4:9-2.
In In re Elmwood Park Project, Section I, Group B , 376 Mich. 311, 136 N.W. 2 d 896 (Sup. Ct. 1965) the date of taking by the condemning authority was in dispute. After determining that this was a question of fact to be determined by the jury, the court further stated that the property owner would be entitled to all expenses from the date of taking, such as water, light, insurance and taxes less credit for the rents received.
In re Mayor, etc. of City of New York , 40 App. Div. 281, 58 N.Y.S. 58 (App. Div. 1899), was a condemnation case factually similar to those before the court herein. In that case the appropriation of the property occurred more than four years before the final award was made and the court said:
The law and logic of In re Mayor, etc. of City of New York, supra , was cited with approval in In re Mayor, etc.
of the City of New York , 59 App. Div. 603, 69 N.Y.S. 742 (App. Div. 1901), affirmed 167 N.Y. 627, 60 N.E. 1116 (New York Ct. of App. 1901). The court said:
"* * *. We conceive the proper rule in this case to be that interest and taxes are to be added to the award, but as an offset a deduction may be made of rentals actually received by the owner, or, where rentals have not been received, of the value of the use and occupation of the premises from the date of the appropriation of the property to the time of the award. As these subjects of deduction are in the nature of offsets, we are of the opinion that ...