Michels, Morgan and Milmed.
In this condemnation case plaintiff-condemnor, New Jersey Turnpike Authority, appeals from a judgment of the Law Division entered after a nonjury trial awarding defendant O'Neill $199,660 plus interest as compensation for the parcel taken and consequential damages to the property remaining in defendants' ownership.
In July 1967 plaintiff, as part of its Turnpike widening program, filed its complaint and declaration of taking of approximately five acres (parcel 2R420) of the northwesterly section of the approximately 15-acre O'Neill holdings in East
Rutherford in the Hackensack Meadowlands area. The total holdings (Lots 36, 36B and 37B in Block 108A on the East Rutherford Tax Map) were bounded on the north by westbound Route 3, on the south by eastbound Route 3, and extended from the Hackensack River on the east to the connecting ramp between Routes 3 and 20 on the west. Access to the property was possible from Route 3 eastbound, but physically impossible from Route 3 westbound. The property is traversed by 2 tidal streams, Blackman's Creek and Branch Creek. It is also traversed by an easement of the Transcontinental Gas Pipeline Corporation for an underground pipe line. The appointment of condemnation commissioners was stayed pending the outcome of litigation between O'Neill and the State Highway Department to determine title to the property. For a history of that litigation see O'Neill v. State Highway Dept., 77 N.J. Super. 262 (App. Div. 1962), rev'd 40 N.J. 326 (1963); and see, O'Neill v. State Highway Dept., 50 N.J. 307 (1967), in which the cause was remanded for retrial on the issue whether the lands were tidelands. Thereafter, the question of title was resolved by a consent judgment filed June 1, 1972, which, among other things, declared the beds of the two creeks to be owned by the State as riparian lands of the State free of any claim by O'Neill. The condemnation action was then reactivated. The condemnation commissioners subsequently appointed made an award of $165,000, from which the New Jersey Turnpike Authority appealed to the Law Division. A motion by the Authority to amend its complaint and declaration of taking to show an access easement to the remaining property of O'Neill was denied. Following a nonjury trial, the court made its award of compensation for the taking (at $20,000 an acre) and consequential damages to the remainder (in the sum of $100,960) totaling $199,660 plus interest.
On this appeal plaintiff contends in the main that the trial judge erred in allowing consequential damages and in fixing the compensation to be paid for the property taken. We agree. The beds of Blackman's and Branch creeks, riparian
lands owned by the State, effectively divide defendants' lands into three separated and noncontiguous parcels. Title to the beds of these creeks was never in defendants. No application was ever made by them for a conveyance of the State's rights in these riparian lands. See N.J.S.A. 12:3-7; 12:3-10; 13:1B-13 et seq.; 13:1D-3(b). They had no right of access or ownership in these lands. There was no unity of use of the three separated and noncontiguous parcels. There was no functional relationship between them. They were separate, independent parcels. In the circumstances there was no lawful basis for an award of consequential damages. See 4A Nichols on Eminent Domain (rev. 3 ed. 1974), §§ 14.3, 14.31; 29A C.J.S., Eminent Domain, § 140 at 592; 1 Orgel, Valuation Under The Law of Eminent Domain (2 ed. 1953), § 47 at 228-232; Bergen Neck Ry. Co. v. Point Breeze Ferry Co., 57 N.J.L. 163 (E. & A. 1894); Annotation, "Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property," 6 A.L.R. 2d 1197, §§ 11-14 at 1219-1226. It is clear that the property actually taken did not constitute "an integral and inseparable part of a single use to which the land taken and other adjoining land" was put. State v. Elizabeth Bd. of Ed., 116 N.J. Super. 305, 315 (Law Div. 1971). And see, Public Service Elec. & Gas Co. v. Oldwick Farms, Inc., 125 N.J. Super. 31, 37 (App. Div. 1973), certif. den. 64 N.J. 153 (1973).
It is well settled that when the whole or a part of a particular tract of land is taken for public use, the owner of such land is not entitled to compensation for injury to other separate and independent parcels belonging to him which result from the taking. [4A Nichols on Eminent Domain (rev. 3 ed. 1974), § 14.3 at 14-378-14-379]
In their "Counter-Statement of Facts" contained in their brief submitted on this appeal, defendants, referring to the respective positions of the parties in the trial court on the issue of consequential damages, say that
On the question of consequential damages to the 9.4758 acre remainder, there was a significant difference of opinion between the parties. The Authority contended that the remainder was comprised of three separate parcels of land with, by far, the largest parcel (some 8.6738 acres) being "noncontiguous" to the condemned property as a result of the State judicially determined ownership of the bed of Blackman's Creek which is situated between the area of the taking and the major portion of the remainder. Based upon this view, the Authority's appraiser opined that there was virtually no damage to the remainder.
It was O'Neill's position that the State's riparian title to the bed of Blackman's and Branch Creeks did not create separate parcels since O'Neill had a statutory preemptive right as upland owner to routinely obtain title to the beds of those creeks from the State as of the taking date. Based upon this analysis, defendant's appraiser testified that the landlocked remainder had a ...