The condemnee, Bayonne Barrel & Drum Co., has applied to the court for an award of legal fees and expert witness fees as an element of damages. This motion was made after a struck jury had returned a verdict of $2,767,000 as damages in the eminent domain proceeding. Prior to that the condemnation commissioners had made an award of $2,873,904 as representing just compensation for the taking of the defendant's property.
An extended statement of facts is not necessary for the disposition of this motion. It is sufficient to state that plaintiff Turnpike Authority originally deposited the sum of $397,036 as the amount it believed would constitute just compensation.
The condemnee justifies its request on the theory that pursuant to the Federal Constitution and the Constitution of the State of New Jersey the landowner must be made "whole" as a matter of equitable principles. These expenses, claims the condemnee, are necessary and unavoidable costs in the defense of a condemnation proceeding and thus are not "counsel fees" in the traditional sense. The argument developed asserts the manifest injustices placed upon a condemnee when a sovereign exercises the right to take land. The condemnor points to R.R. 4:55-7 (now R. 4:42-9) and states that counsel fees may be awarded only as permitted by the rule. It also cites several cases for the proposition that each litigant should bear his own counsel fees. Finally, the case of Housing Authority of Long Branch v. Valentino , 47 N.J. 265, 268 (1966), is cited as the present authority on the issue.
The Valentino case would appear to preclude this court from granting defendant's motion. The facts in that case, however, seem to be of the ordinary garden variety. In the case at bar the facts and circumstances dictate a further exploration.
It is axiomatic that in any condemnation proceeding the property owner is entitled to just compensation for his land. The Federal Constitution and the New Jersey Constitution (1947), Art. I, par. 20, provide that "Private property shall not be taken for public use without just compensation." What, then, does the term "just compensation" include? Does it include the expense of obtaining expert witnesses? Does it include the expense of representation by counsel? The court is aware that as a general proposition of law, costs are not recoverable unless allowed by statute. State v. Pellini , 75 N.J. Super. 161, 169 (App. Div. 1962), Metler v. Easton and Amboy R.R. Co. , 37 N.J.L. 222 (Sup. Ct. 1874). Metler further states that if costs are given by statute their allowance in any case will depend upon the terms of the statute.
Presently there are two rules which allow costs in condemnation proceedings. One is R. 4:73-5 (formerly R.R. 4:92-5):
On the motion of any party, including the commissioners, the court may, in its discretion, on proper showing, allow such fees, expenses and costs of the commissioners as it deems adequate, to be paid by plaintiff. [Emphasis added]
The other rule is R. 4:73-8 (formerly R.R. 4:29-8).
Costs of the appeal shall be taxed against the plaintiff-condemnor in all cases except those in which the appeal is brought by the defendant-condemnee and the judgment is for the same or a lesser sum than that awarded by the commissioners.
To iterate, R. 4:73-5 refers to costs of the commissioners, R. 4:73-8 to costs of the appeal. Does either or both of these rules include ...