For reversal and remandment -- Justices Pashman, Clifford, Schreiber and Handler. For affirmance -- Chief Justice Hughes. The opinion of the court was delivered by Schreiber, J. Hughes, C.J., dissenting.
[75 NJ Page 423] The plaintiff, a property owner, instituted this action against the New Jersey Turnpike Authority (Authority) for breach of a contract allegedly made in anticipation of a project to construct an expressway between
the New Jersey Turnpike Interchange 9 in the New Brunswick area and Toms River. The proposed route would have necessitated a taking of part of the plaintiff's land located in Toms River. The Authority sought and received a Right of Entry Permit from plaintiff. When the expressway project was abandoned, the Authority attempted to void the permit. Plaintiff refused to release its rights and instituted this action to recover the sum allegedly promised in the permit. The Authority's motion for summary judgment, predicated on the concept that no contract had come into being, was granted by the trial court. On appeal, the Appellate Division affirmed, one judge dissenting. The plaintiff appealed as of right to this Court pursuant to R. 2:2-1(a).
The following factual picture emerges from the pleadings and affidavits submitted on the summary judgment motion. After surveying the plaintiff's property which was to be used for the proposed expressway, the Authority made nine test borings on the land on six different days in July and August 1973. On November 12, 1973 the Authority's Manager of Right of Way wrote the following letter to the plaintiff:
Your property will be affected by the construction of the Governor Alfred E. Driscoll Expressway and will be needed no later than April 1, 1974.
Enclosed please find Right of Entry permit form which entitles you to 8% from the date of signing until an agreement has been reached by negotiations. In addition, the Authority will pay the property taxes on the affected property to be acquired from April 1, 1974 until final settlement date. May I reiterate that the 8% is over and above the final settlement price.
If this agreement meets with your approval, please sign, date and return to:
New Jersey Turnpike Authority, 8 Robbins Street, Toms River, N.J. 08753
The enclosed printed Right of Entry Permit form in which the property description was inserted read as follows:
NEW JERSEY TURNPIKE AUTHORITY
New Brunswick, N.J. 08903
IN CONSIDERATION of the sum of one dollar ($1.00) and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, hereinafter called the "Owner" grants to the New Jersey Turnpike Authority, hereinafter called the "Authority" a permit upon the following terms and conditions:
1. The owner hereby grants to the Authority an irrevocable right to enter upon the lands hereinafter described in order to carry out the construction program of the Authority; to include but not be limited to surveys, clearing, grading, drainage and the erection of structures or other improvements.
2. All tools, equipment, buildings, improvements and other properties placed upon the land by the Authority or its contractors and/or agents shall remain the property of the Authority, its contractors or agents, as the case may be, and may be removed by the Authority, its contractors or agents at any time within a reasonable period after the termination or expiration of this permit.
3. The Authority recognizes the co-operation of the owner in granting this voluntary entry, and will proceed promptly to obtain reports and appraisals so that negotiations may be instituted quickly, looking to a settlement, based upon a fair and just price to be paid to the owner.
4. The lands affected by this permit are located in the State of New Jersey, County of Ocean, and are described as follows:
As shown on preliminary map of Governor Alfred E. Driscoll Expressway by Sanders and Thomas, Inc., consisting of 32.02+- acres further defined as Block ...