For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Clifford. Concurring in part and dissenting in part -- Judge Conford. Conford, P.J.A.D., Temporarily Assigned, concurring in part and dissenting in part.
The judgment of the Appellate Division is affirmed essentially for the reasons set forth in Judge (now Justice) Handler's opinion. 138 N.J. Super. 23 (1975).
We agree with the conclusion of the Appellate Division that the three instruments executed and delivered respectively by Bakers Basin Realty Co., John and Jane Kachmar, and John and Janina Zagorzycki, as sellers, and
Cortshire Development Corp. as purchaser should be treated as contracts of sale rather than as options. This makes it unnecessary for us to reconsider our earlier holding in State v. New Jersey Zinc Co., 40 N.J. 560, 576-77 (1963) that an optionee has no standing to intervene in a condemnation proceeding or to share in an award. For a recent contrary view, see County of San Diego v. Miller, 13 Cal. 3d 684, 119 Cal. Rptr. 491, 532 P. 2d 139 (1975).
We also concur in the conclusion that there is sufficient evidence of unity of use to justify treating the three parcels -- Bakers Basin, Kachmar and Zagorzycki -- as a single integrated unit for purposes of determining severance damages. Although not precisely in point, Justice Pashman's opinion for this Court in Housing Authority of Newark v. Norfolk Realty Co., 71 N.J. 314 (1976) would appear to be relevant to a consideration of this issue. See 71 N.J. at 321-25.
CONFORD, P.J.A.D., Temporarily Assigned, concurring in part and dissenting in part. I agree with so much of the Appellate Division's conclusions, here adopted by the Court, as hold that Cortshire has standing to participate in the condemnation. However, I would reach that result by overruling State v. New Jersey Zinc Co., 40 N.J. 560 (1963), which holds that an optionee does not have sufficient interest in real estate to warrant admission as a party in a condemnation. I would follow the highly persuasive decision of the California Supreme Court in County of San Diego v. Miller, 13 Cal. 3d 684, 119 Cal. Rptr. 491, 532 P. 2d 139 (1975), to the effect that an optionee of real estate should and does have status to participate in the condemnation.
I disagree with the determination of the Court that the three separate tracts purchased by Cortshire, i.e., from Bakers Basin Realty Co., Kachmar and Zagorzycki, respectively, had, as of the commencement of the condemnation action, the requisite unity of use which is necessary to permit the owner
to claim severance damages to the Kachmar and Zagorzycki portions of the assemblage from the taking by the State of only a portion of the Bakers Basin Realty Co. tract.
The survival of the New Jersey Zinc Co. rule in this State leads to such largely semantic disputations as unfortunately involved the lower courts here. The fine-spun distinction which the Appellate Division was forced to elaborate, i.e., between contracts and options, when an agreement stipulates for liability of the buyer upon default only to the extent of his deposit, serves no useful purpose and simply attenuates condemnation litigation in which the character of certain kinds of realty contract is made an issue. For example, I cannot be sure, upon close reading of the Appellate Division opinion, whether it was the view of that court that if the vendee repudiated the agreement upon a simple change of mind it would have been subject to an action for specific performance by the vendors. If the court intended so to hold, I would probably not be able to agree, in the light of the clear and unambiguous language of the default clause. If. on the contrary, that was not the intent of the opinion, nor the availability of specific performance held to be the talisman of a contract vis a vis an ...