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County of Monmouth v. Wissell

Decided: July 11, 1975.

COUNTY OF MONMOUTH, PLAINTIFF-APPELLANT,
v.
ROBERT J. WISSELL AND BARBARA J. WISSELL, HIS WIFE, AND EDGAR ROGERS, DEFENDANTS-RESPONDENTS



For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Schreiber, J.

Schreiber

The plaintiff County of Monmouth instituted a condemnation proceeding to acquire property owned by the defendants Robert J. Wissell and Barbara J. Wissell for park purposes. The County filed and served a declaration of taking so that it could take immediate possession of the property. The defendants moved to strike the declaration and restrain plaintiff from obtaining possession. The Superior Court, Law Division, denied the motion. Leave to appeal was granted and the Appellate Division reversed. The matter is before us by virtue of our having granted the plaintiff's motion for leave to appeal. R. 2:2-2(b).

The issue is whether a county which has the power of eminent domain to acquire private property for park purposes is empowered to take possession of that property after the institution of and before completion of the condemnation proceedings. Whether authority exists for taking such possession depends upon the interpretation of N.J.S.A. 20:3-17, a provision of the Eminent Domain Act of 1971. N.J.S.A. 20:3-1 et seq.

N.J.S.A. 20:3-17 provides that:

At any time contemporaneous with or after the institution of an action and service of process, the condemnor may file in the action, when empowered to do so by law, and if so filed, shall also file in the recording office, a declaration of taking, * * *.

After the declaration of taking has been recorded and served on the condemnee and all occupants of the property, the right to the immediate and exclusive possession and title to the property vests in the condemnor. N.J.S.A. 20:3-19.

An Eminent Domain Revision Commission was created in 1962 "to study and prepare a proposed revision or revisions of the statute governing eminent domain as set forth in R.S. 20:1-1 et seq. and other statutes relating to the taking of property for public use * * *." L. 1962, c. 50. The Commission held hearings and on April 15, 1965 issued its

report. It was on the basis of the recommendations in the report that the Eminent Domain Act of 1971 was drafted.

The Commission recommended a statute creating a "uniform practice and procedure for the exercise of the power of eminent domain, equally applicable to all bodies vested with such power * * *." Report of the Eminent Domain Revision Commission 6-7 (1965). It traced the development of eminent domain law and pointed out that, as public and quasi-public activities expanded, necessity for acquisition of large quantities of private properties required additional and enlarged powers of eminent domain. Statutes were adopted which incorporated powers different from those in the Title 20 Act. The Commission significantly noted that:

Consequently, there are now in effect in this state in excess of some 300 statutes authorizing the exercise of the power of eminent domain. Most of those statutes (particularly those relating to most municipal, county and school board acquisitions) do not authorize the condemning body to take possession of land in advance of fixing and paying compensation. The statutes which do authorize "pre-payment takings" are not uniform in their provisions for pro tanto payment to property owners at the time of taking, and the protection of such owners with respect to the payment of any additional moneys which may be found due them. [at 12-13].

The Commission also proposed that the statute "shall permit condemning bodies to take possession of property immediately following institution of proceedings, upon making available to the property owner at that time through a deposit of funds, all or a substantial amount of the compensation to which he may become entitled." [at 7]. The Commission stated it was "essential that the condemning body be permitted to take possession of property promptly following the filing of the complaint and service of process." It "believed that the right to take possession should be granted on a uniform basis to all bodies possessing the power of eminent domain, except individuals or ...


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