Simpson, J.c.c. (temporarily assigned).
In these two condemnation cases the defendant-condemnees seek orders fixing the valuation dates for their respective properties. In the Milkon case both the State and the property owner have appealed from the amount of the award by the condemnation commissioners, while only the State has so appealed in the South Hackensack case. Jury trials have been demanded in both cases, and under the circumstances to be described, it is essential that the motions be decided prior to the trials de novo.
Both cases involve the taking of lands for highway purposes, and it is undisputed that the State has such power of eminent domain. In Milkon the date of actual physical entry was January 1, 1962, and in South Hackensack it was August 1964. The complaints in condemnation were filed by the State on March 6, 1970 for Milkon and October 26, 1967 for South Hackensack. On March 9, 1970 a declaration of taking was filed in Milkon and $1,300 was deposited with the clerk of the court. For South Hackensack the comparable filing date was November 30, 1967, and $250 was deposited. In both cases, therefore, the State had entered and taken physical possession of the respective properties prior to any complaints, declaration of taking, or depositing of estimated valuations in court. Such immediate possession was authorized by N.J.S.A. 27:7-22 prior to the amendment of the statute by L. 1965, c. 79, § 1. Abbott v. Beth Israel Cemetery Ass'n of Woodbridge , 13 N.J. 528, 549-551 (1953); State, by State Highway Comm'r v. Seaway, Inc. , 46 N.J. 376, 378 (1966). Such physical possession constituted "taking" of the properties, State v. New Jersey Zinc Co. , 40 N.J. 560, 572-573 (1963), but were not trespasses, and mandamus would lie to compel further condemnation proceedings. Haycock v. Jannarone , 99 N.J.L. 183, 185 (E. & A. 1923).
At about the same time the complaints were filed, orders to show cause why condemnation commissioners should not be appointed (March 9, 1970 for Milkon and October 26,
1967 for South Hackensack) were obtained, and on May 11, 1970 and December 19, 1967, respectively, orders were signed appointing such commissioners in both cases. Each order required the fixing of compensation and damages "resulting from the taking * * * as of the date of the commencement of this action * * *." There were no appeals from these orders, and both sides in each case apparently believed the proper valuation dates were the aforesaid dates of filing the complaints. The respective commissioners awarded $8,100 in Milkon and $25,000 in South Hackensack. There had been amendments to the complaints, relative to the properties actually condemned, but these are of no moment as to present issues.
Following the notices of appeal from the awards of the commissioners, but before the trials were calendared, the Eminent Domain Act of 1971 became effective on December 21, 1971. L. 1971, c. 361. Section 4 thereof makes it applicable to all pending actions as well as actions instituted after the effective date. Sections 30, 31 and 32 provide as follows:
30. Date as of which compensation shall be determined.
Just compensation shall be determined as of the date of the earliest of the following events: (a) the date possession of the property being condemned is taken by the condemnor in whole or in part; (b) the date of the commencement of the action; (c) the date on which action is taken by the condemnor which substantially affects the use and enjoyment of the property by the condemnee.
Interest as set by the court upon the amount of compensation determined to be payable hereunder shall be paid by the condemnor from the date of the commencement of the action until the date of payment of the compensation; provided, however, that there shall be excluded from the amount upon which interest shall be calculated, all moneys deposited pursuant to Article V hereof; and provided, further, that interest payable hereunder shall be subject to abatement for rents and profits derived from the property by the condemnee during the period for which interest is payable hereunder, and/or for the fair rental value of such property or any portion thereof occupied by the condemnee during such period.
32. Disputes as to interest.