Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.
In this condemnation case the State, by the Commissioner of Transportation, appeals from a judgment awarding defendant Township of South Hackensack (the township) $26,650 for land taken by the State in connection with the construction of Interstate Route 80, a limited access freeway running in a general westerly direction from the George Washington Bridge.
The present proceedings were instituted pursuant to the Eminent Domain Act, N.J.S.A. 20:1-1 et seq. , to fix just compensation for two parcels of land which lay athwart the path of the new freeway, parcel 205 containing 16,150 square
feet, and parcel 206, 5,173 square feet. The State sought a fee simple absolute in both parcels. N.J.S.A. 27:7-22.2. They were located in the South Hackensack industrial park, located immediately east of the New Jersey and New York branch of the Erie-Lackawanna Railroad, and comprised a right-of-way occupied by railroad freight tracks and switches utilized by the Industrial Commission of the Township of South Hackensack to connect the industries in the area with the railroad. Since there was to be no access to Route 80, the result of the taking was to entirely sever that railroad siding.
Following other litigation between the parties, which culminated in an order directing the commissioner to proceed with condemnation, the present action was instituted on February 23, 1967. The Condemnation Commission awarded $25,325 for parcel 205 and $2,586.50 for parcel 206. The State thereupon appealed to the Law Division where a unanimous award of $23,030 for parcel 205 and $3,620 for parcel 206 was returned by the jury. The present appeal followed.
The State raises two points, which may be briefly summarized as follows: (1) since each parcel of land taken comprised what had originally been the bed of a public street no compensation was recoverable and (2), if compensation was recoverable, the fact that the lands taken were dedicated to public use precluded an award for their fair market value.
In urging that no compensation whatever was payable the State relies upon State Highway Commissioner v. Elizabeth , 102 N.J. Eq. 221 (Ch. 1928), aff'd 103 N.J. Eq. 376 (E. & A. 1928). We hold the facts in that case to be clearly distinguishable from those here. There the court was dealing with the "Spring Street Route" which was followed by the State Highway Commission in constructing State Highway Route 25 through the City of Elizabeth. The award sought
in that case was not, as here, for the physical taking of the bed of a cross street which resulted in a permanent severing of the cross street with no access therefrom to the new highway. It is likewise clear that the comments of the Vice Chancellor in that case, on which the State relies, were in no wise essential to its adjudication. See State v. Cooper , 24 N.J. 261, 269 (1957), cert. den. 355 U.S. 829, 78 S. Ct. 41, 2 L. Ed. 2d 42 (1957). On the contrary, the property actually involved was not the bed of a street but property owned in fee and used as a corporation yard by the City of Elizabeth for which the State had offered to pay. The court assumed it to be held in the city's private or proprietary capacity, as to which it concluded that "the municipality stands in the same position as any private individual or corporation." 102 N.J. Eq. at 226-227.
Under the State's theory, a municipality would be left without remedy in a situation where, in laying out a State highway, each intersecting street in the municipality was severed and left without access to the new highway. We need not determine to what extent State Highway Commissioner v. Elizabeth may be applicable to a situation where the State adopts the alignment of a city street for a State highway. Assuming that the railroad siding was constructed on the bed of dedicated streets, we hold only that it was never intended to eliminate the requirement of compensation for the taking in fee of such portion of the bed of such streets as lay across the proposed alignment of a new State highway and would be left without access to the new highway when the latter was completed.
We are satisfied that the point raised is controlled by State v. Cooper, supra. In that case, the State Highway Commissioner sought a declaratory judgment that the Borough of Fort Lee was entitled to no compensation for the taking of publicly maintained park lands bordering on Hudson Terrace. In 1851, a filed map had shown, in addition to a building lot subdivision, ...