Sullivan, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
In this condemnation case defendant Hazel R. Birch appeals from a verdict in the sum of $22,000 for a portion of her land taken by the State in connection with the construction of the Route 35 freeway (the freeway) and damage to the remainder.
Mrs. Birch was the owner of a tract of land which lay athwart the proposed right-of-way of the freeway. The actual taking involved approximately three acres. However, the effect of the taking was to cut her property in two, leaving approximately 4 acres to the east of the right-of-way and 15 acres to the west. Her home and outbuildings were located on the westerly 15 acres, and prior to the taking access thereto was via Bentz Road, a sand and gravel road maintained by the Township of Wall, which ran in an easterly direction to New Bedford Road. Bentz Road comprised the easterly end of a dedicated street which extended through various properties from the New Bedford Road west to the Bailey's Corner Road, but the part to the west beyond defendant's home was no more than a "paper" street and appears never to have been opened or worked by either the township or the adjoining owners. The distance from defendant's house to the Bailey's Corner Road over the route of the paper street was approximately 1,700 feet, of which 960 feet was through the property of others. The route was impassable for any sort of vehicle at the time of the taking.
The case produced the usual disagreement between the admittedly qualified experts as to the damage sustained by defendant. Her witness, Lazarus, was of the opinion that the land actually taken was worth $2,000 per acre and
that the damage to the remainder was $35,000 based upon his value of the westerly 15 acres before the taking of $41,000 and his value after of $6,000. Gall, the State's expert, estimated the value of the land taken to be $7,640 and the damage to the remainder to be $6,860, a total of $14,500. As noted, the jury awarded $22,000.*fn1
The wide divergence between the opinions of the experts was occasioned by their inability to agree upon the cost of curing the resultant landlocked condition of defendant's westerly 15 acres. The State's expert, while not disputing its landlocked character, averred that this could be relieved by the construction of a 20-foot wide gravel road leading to the Bailey's Corner Road and that such a road could be built for $6,860. He appears to have assumed that it would be maintained by the township. Defendant countered that the construction of such a road would be subject to a number of contingencies, including, in addition to the cost of construction, whether she would have the right to construct such a road, whether her right of access to Bailey's Corner Road over the paper street would survive a vacation by the township, and whether the township would maintain it (as it had been maintaining the easterly end of Bentz Road for some 20 years). Ancillary to resolution of the cited questions was whether the land subdivision ordinance of the township governed the size and type of the road proposed to be constructed, and, if not, whether the township could require defendant, as a prerequisite to its taking over and assuming the maintenance of the new road, to comply with the street standards set forth in the subdivision ordinance. There was testimony that at the time the original taking was determined upon, the State had contemplated building the access road itself, but upon being confronted with a demand by the township authorities that it be constructed in conformity with the street standards set out in the subdivision ordinance,
it elected not to do so but to leave the issue of the building of the road to the owner.
The appeal presents a single, key issue: whether it was prejudicial error to instruct the jury, both during the trial and in the charge, that the land subdivision ordinance was not applicable to the case and played no part therein, and that Mrs. Birch did not have to comply with the ordinance in building the access road. In the charge the jury was instructed, in substance if not expressly, that if defendant's expert based "his after value upon the expense to which Mrs. Birch would be put to comply with the land subdivision ordinance," there was no basis for that portion of his testimony. Defendant contends that this had the effect of emasculating the testimony of her expert, and led to the allegedly inadequate verdict returned by the jury.
From our consideration of the proofs in the light of the issues involved, we are inclined to agree that the challenged instruction was error, and that the interest of justice call for a new trial.
Defendant was entitled to just compensation. N.J. Const. (1947), Art. I, par. 1. In general, had the whole of her lands been taken, her damages would have amounted to the fair market value of the property as of the date of the taking, determined by what would be agreeable between a willing seller and a willing buyer, neither being under any compulsion. State v. Speare , 86 N.J. Super. 565, 572 (App. Div. 1965), certif. den. 45 N.J. 589 (1965). Where, as here, there was only a partial taking, the measure of damages was the difference between the fair market value, as above defined, of the whole property before the taking and the fair market value of the remainder after the taking. Port of N.Y. Authority v. Howell , 59 N.J. Super. 343, 348 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961), certif. den. 36 N.J. 144 (1961). The ...