Kolovsky, Matthews and Crahay. The opinion of the court was delivered by Kolovsky, P.J.A.D.
Plaintiff appeals from the judgment entered on a jury verdict after trial of an appeal from an award made by condemnation commissioners. As recited in the judgment, the jury found that defendants Orenstein were entitled to $71,000 "for the lands taken by" plaintiff and the "damages resulting from such taking to the remaining [Orenstein] property," and that the intervening-defendant, Ramy Realty, Inc., was entitled to $25,000 "for the decrease in the value of the Ramy Realty, Inc. property as a result of the taking."
The complaint, filed by plaintiff in the exercise of its power of eminent domain, sought to obtain title in fee simple to a specifically described part of a tract owned by defendant Isadore D. Orenstein and other property rights in the remaining part of the Orenstein tract. It prayed the appointment of commissioners "to fix the compensation to be paid for the taking of the lands and premises hereinbefore described, including the damages, if any resulting from the taking, to any remaining property."
Consistent with "substantive due process," Housing Authority, Atlantic City v. Atlantic City Expo. , 62 N.J. 322, 328 (1973), the description in the complaint of the lands and property rights to be taken was definite and certain. The description embraced an area of about 9,765 square feet as well as slope rights and the right to construct and maintain a subsurface drain and appurtenances in Orenstein's remaining lands, all as delineated on an attached map. Further, the proposed taking included, with a stated exception, "the owner's right of direct access to and from the Freeway."
The description embodied in the complaint was -- and should have been treated by the trial court to be -- of controlling significance since it is settled, as stated in State v. New Jersey Zinc Co. , 40 N.J. 560 (1963), that:
[T]he only issue to be determined by the commissioners and by the fact finder in event of appeal is the lump sum compensation to be paid by the condemnor, * * * plus any damages to the remaining property of the owner if the taking is only a part thereof * * *. [at 573, emphasis added]
Fundamental fairness and the governing statute mandate that the factfinder be limited to that one issue since the condemnor will obtain, by virtue of the condemnation proceedings, title only to the land and property rights described in the complaint. N.J.S.A. 20:1-12 (now repealed), N.J.S.A. 20:3-6 and N.J.S.A. 20:3-19; Housing Authority, Atlantic City v. Atlantic City Expo., supra; Vail v. Morris & Essex R.R. Co. , 21 N.J.L. 189, 196 (Sup. Ct. 1847); Winter v. Telephone Co. , 51 N.J.L. 83, 84-85 (Sup. Ct. 1888); State v. Applegate , 107 N.J. Super. 159 (App. Div. 1969); cf. Northern R.R. Co. v. Demarest , 94 N.J.L. 68 (Sup. Ct. 1919).
If there are any issues to be decided other than that of value and damages -- be they a challenge to the plaintiff's right to exercise the power of eminent domain or a claim that the condemnor is in fact taking more property and rights than those described in the complaint -- those issues must be presented to and decided by the court before it enters judgment appointing condemnation commissioners. State v. New Jersey Zinc Co., supra , 40 N.J. at 572; N.J.S.A. 20:1-2 (now repealed); N.J.S.A. 20:3-5 and 11; see also, State v. Applegate, supra.
In view of these settled rules, it was error for the trial court, over the objection of plaintiff:
(1) To permit defendant Orenstein and a surveyor called by him to testify that plaintiff's taking included, in addition to what was described in the complaint, a right of way easement appurtenant to the Orenstein property over lands to the south which had been owned by one Preiskel, the easement area embracing a parcel of land, adjacent to the Orenstein property, 24.24 feet wide and 100 feet deep, extending from the easterly side of River Drive to the Passaic River, as
well as an adjacent area to the south fronting 40 feet on Passaic River and running ...