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City of Jersey City v. Realty Transfer Co.

Decided: August 13, 1974.

CITY OF JERSEY CITY, PLAINTIFF-APPELLANT,
v.
REALTY TRANSFER COMPANY, DEFENDANT-RESPONDENT



Conford, Handler and Meanor. The opinion of the court was delivered by Meanor, J.A.D.

Meanor

By eminent domain plaintiff Jersey City took approximately 1,334 acres of essentially vacant and unused land belonging to defendant and located in Jefferson Township, Morris County, New Jersey. Following jury trial the award to defendant was $821,000, of which $650,000 previously had been paid. On January 5, 1973 the court entered judgment for the difference plus interest of $180,358.32 for a total of $351,358.32. The only important issues presented by this appeal concern the allowance and calculation of interest.

The trial court held that the parties, during negotiation prior to suit, had stipulated to a taking date of June 1,

1968, although plaintiff denied that such a stipulation had been made. This finding of the trial court is based on sufficient credible evidence and we affirm it. State v. Johnson, 42 N.J. 146, 162 (1964). Since we believe that litigants should be held to their stipulations and the consequences thereof, we may pass plaintiff's argument that there was no taking in fact by it.

The complaint was filed February 28, 1969; $150,000 was paid to defendant on July 2, 1969 and deposit into court of $500,000 was made on July 12, 1972, which was promptly withdrawn by defendant. The trial court allowed interest on $821,000 from June 1, 1968 to July 2, 1969, the date of payment of $150,000; on the balance of $671,000 from July 2, 1969 to July 12, 1972, the date of the $500,000 deposit; and on the balance of $171,000 from July 12, 1972 to January 5, 1973, the date of its judgment.

Despite plaintiff's attempt to distinguish it, we believe that the allowance of interest here was in accord with State v. Nordstrom, 54 N.J. 50 (1969). See also, N.J. Highway Authority v. Ellis, 24 N.J. 1 (1957). Our problem lies in the fact that between Nordstrom and the entry of judgment below the Eminent Domain Act of 1971 became law, N.J.S.A. 20:3-1 et seq., and included the following in N.J.S.A. 20:3-4:

This act shall take effect immediately following the approval thereof, and shall apply to all actions instituted thereafter, and to all proceedings taken subsequent thereto in all actions pending on such effective date. * * *

The effective date of the Eminent Domain Act of 1971 was December 21, 1971. The question is whether certain sections of that act pertaining to the allowance of interest to the condemnee require a modification of the interest assessed below. See Wayne v. Ricmin, Inc., 124 N.J. Super. 509 (App. Div. 1973), certif. den. 63 N.J. 583 (1973).

N.J.S.A. 20:3-31 provides:

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.

Applied literally to the facts here, this statute would require that interest begin to run, not from the stipulated date of taking of June 1, 1968, but from the filing of the complaint on February 28, 1969. The unfairness of depriving a condemnee of interest during a portion of the period following the taking is obvious and this remedial act should not be construed to require so harsh a result unless no alternative is open. Alexander v. N.J. ...


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