Matthews, Seidman and Horn. The opinion of the court was delivered by Horn, J.A.D.
This appeal revolves about the interpretation of the provisions of a highway construction contract between the parties. The case was tried below without a jury. At the conclusion thereof Judge Johnson rendered a written opinion which is reported at 134 N.J. Super. 198 (Law Div. 1975). On the basis of that opinion a judgment of no cause for action was entered against plaintiff. This appeal by plaintiff is from that judgment.
Since the trial judge's opinion sets forth the pertinent facts, we need not repeat them except as may be necessary for the sake of clarity in a discussion of the issues.
On or about July 10, 1969 plaintiff and the State, acting through the Department of Transportation, entered into a contract for the construction of a portion of the state highway known as Route 21 in Passaic County. Among other work, plaintiff was to erect a viaduct and relocate an existing sewer line in accordance with the contract and specifications.
It is undisputed that the State was required to furnish access to the required lands for plaintiff.
Three claims were made by plaintiff for extra costs and losses incurred by it in the performance of the contract. As mentioned by the trial judge in the reported opinion, they are: (a) those suffered by virtue of an injunction issued by the Superior Court of this State; (b) costs ordered by the Superior Court to be paid by plaintiff to the City of Passaic for temporary pumping following an apparent break of that city's sewer line, and (c) the overhead and ordinary profit lost by plaintiff as the result of the failure of the State to provide access for plaintiff to go upon lands needed for plaintiff to perform a portion of the work it was required to execute. The parties stipulated that plaintiff's damages as to (a) were $34,975.91; as to (b) $27,121.93, and as to (c) $53,201.61.
As to (a) and (b) we agree with the reasoning of the trial judge and affirm the resulting determination that plaintiff is not entitled to recover with respect to them.
As to the third claim, (c), we do not agree with the trial judge's determination. As already stated, the State was to furnish site access. This third claim involved work to be done upon lands owned by United Wool, Piece, Dyeing and Finishing Company (United Wool). As stated by the trial judge:
At the time the parties entered into the contract in question it was assumed by them that defendant had the right to enter upon the lands of United Wool as a derivative right granted by the property owner to the City of Passaic in an easement agreement permitting the city to service the sewer line which was to be relocated by plaintiff pursuant to its contract with defendant. Defendant had so assured plaintiff that this was so. [134 N.J. Super. at 204]
Because of its prior experience with the frequent frustrations involved in obtaining rights-of-way for highway construction, Franklin requested the State to document the availability of the right-of-way at a pre-construction conference held shortly after the award of the contract. At this meeting
the state representatives indicated that all "vacant lands" were available to the contractor. The State was told by its consulting engineer that it had the right to use the easement granted by United Wool to the City of Passaic. Accordingly, the State orally assured Franklin that it could use this easement across the United Wool ...