Handler, Meanor and Kole. The opinion of the court was delivered by Handler, J.A.D.
[128 NJSuper Page 240] The Board of Public Utility Commissioners dismissed the petition of American Telephone & Telegraph
Company of New Jersey seeking to exercise the power of eminent domain pursuant to N.J.S.A. 48:3-17.6 et seq. and N.J.S.A. 48:17-9.1. The interest sought to be condemned was an easement for a right-of-way for underground communications facilities over lands owned by the individual respondents located in the Township of Jefferson, Morris County.
The decision and order of the Board were based substantially upon the reasons and recommendations of the hearing examiner. The examiner concluded that petitioner had committed a willful trespass, in direct violation of N.J.S.A. 48:3-17.7. The examiner's report also indicated that the Board lacked power to authorize condemnation because payment had not been made in advance of the taking of the property. The Board, in adopting this report, was of the further opinion that petitioner had "expropriated" the property and that the property owners had not acquiesced in petitioner's use of their property. It also rejected the argument that "extenuating circumstances" should enable petitioner to now exercise the right to institute condemnation proceedings because petitioner was at fault for creating such circumstances. It further disagreed with petitioner's contention that barring condemnation would result in "drastic inequities" and would be detrimental to the public interest because it would threaten the suspension of an important public work.
Essentially these are the facts. Petitioner was responsible for the acquisition and construction of the New Jersey segment of an underground coaxial cable which runs from Boston to Miami and which interconnects all of the major cities on the east coast and through them the remainder of the nation. The cable carries long distance telephonic communications, private line services for major business concerns, and numerous critical services for the Federal Government. It was described in testimony as "a vital link in the long distance message network and * * * one of the backbone
facilities which makes up the military communications network along the east coast."
Petitioner followed its usual practice to acquire easements. It took an aerial photograph of the proposed route and transposed land ownership information from the local tax maps and lists. This showed that the land in question was owned by a Walter F. Dunn. Negotiations were conducted and an easement of about 3,700 feet was purchased from Dunn over what was presumed to be his property. Petitioner cleared the easement area in July 1968 and began preparations for laying the cable.
On November 12, 1968 petitioner was informed by the township assessor that it had made an error as to ownership. Petitioner then ascertained the names of the true owners who were immediately notified and a meeting was arranged to view the property and discuss the damages. At the time this error was discovered the work of burying the cable was not quite finished. This work, which entailed some dynamiting, was completed during the early meetings of the parties. It is clear that petitioner concluded this job of laying the cable with the expectation that the owners would be fully compensated through the negotiation of a successful settlement.
The first meeting of the parties was on November 26, 1968. From then until September 1971 these negotiations continued. Petitioner made numerous offers which were rejected by respondents. When it became apparent that the efforts to negotiate a settlement were futile, the utility filed its petition.
The power of eminent domain is the power to "appropriate and control [private] property for the public benefit as the public safety, necessity, convenience, or welfare" requires. Valentine v. Lamont, 13 N.J. 569, 575 (1953), cert. den. 347 U.S. 966, 74 S. Ct. 776, 98 L. Ed. 1108 (1954); see also, e.g., Bergen County Sewer Auth. v. Little Ferry, 5 N.J. 548, 552 (1950), cert. den. 344 U.S. 865, 73 S. Ct. 105, 97 L. Ed. 670 (1952). The Constitution and
the statutes of the State of New Jersey recognize the power of eminent domain in both political subdivisions of the State and in private corporations and individuals. N.J. Const. (1947), Art. 1, para. 20; Art. IV, § VI, para. 3; N.J.S.A. ...