In this action in lieu of prerogative writs the core issue is whether plaintiff, a public utility, must at its own expense relocate poles, anchor guys and related equipment which were placed in the bed of a now vacated street pursuant to an easement granted to plaintiff by defendant township so that the industrial commission of that township may pursue development plans in the area heretofore occupied by the easement. In the court's view, resolution of this question depends upon an interpretation of the scope of the Supreme Court's opinion in Port of New York Auth. v. Hackensack Water Co. , 41 N.J. 90 (1963) (hereinafter Port Authority). That case held that public utilities were required to absorb the costs of relocation of their facilities necessitated by virtue of improvements undertaken by the Port Authority of New York with respect to the George Washington Bridge, Holland and Lincoln Tunnels and Port Newark Marine Terminal. The question here is whether this common law principle should apply to the following factual setting.
On February 24, 1967 defendant granted a right-of-way to plaintiff and New Jersey Bell Telephone Company to install nine poles and four anchor guys on defendant's premises. The purpose of the grant was to enable plaintiff to provide electrical utility service to a private industrial facility owned by Specialty Woodcraft, Inc.
The consideration for the easement was one dollar. It was granted along the path of a paper street known as Autumn Avenue and across lands known on the tax map as Block 408, owned by the township and located east of Autumn Avenue. The plant of Specialty Woodcraft, Inc. had been newly constructed in 1967 on lands acquired from the Lakewood Industrial Commission, a body corporate organized pursuant to N.J.S.A. 40:55B-1 et seq. as a result of efforts made by the Commission to attract new industrial users to the township. The decision to place these utility poles and facilities in the bed of proposed Autumn Avenue and across other township lands was made jointly by the Lakewood Industrial Commission and Specialty
Woodcraft, Inc. in cooperation with Jersey Central Power and Light Company. As noted, Autumn Avenue was merely a paper street at this time, that is, an unimproved street appearing on a map filed in the county clerk's office on January 9, 1920 pursuant to N.J.S.A. 46:23-1 et seq. The street was never improved by defendant nor had defendant ever formally accepted a dedication of it.
Indeed, on February 10, 1972 the township vacated Autumn Avenue and Herman Street, Harriet Street, Kurz Street and Winter Avenue, all located in the same general vicinity of Autumn Avenue, at the suggestion and request of the Industrial Commission. The Commission had entered into negotiations with a potential industrial developer which would have resulted in the Commission conveying a large tract of land, including these five streets, had the negotiations been successful. For reasons not here relevant, the sale was never consummated. However, these streets remain vacated.
On or about June 30, 1970, the Industrial Commission entered into a contract with Lakewood Quality Egg Co., Inc. to sell certain township lands known as Block 396 on the tax map, a parcel of land in proximity to the land that is the subject of this suit, with the proviso that the Industrial Commission would extend water and sewer service to the property and that Lakewood Quality Egg would build an industrial building thereon. The Commission was unable to extend the water and sewer service to Block 396 and, as a result, Lakewood Quality Egg filed suit against the Commission. That suit resulted in a consent judgment being entered on March 26, 1976, whereby the Industrial Commission agreed to sell Blocks 405-408 to Lakewood Quality Egg in lieu of Block 396. The closing was scheduled in February 1978. However, the Commission was unable then to convey clear title because of the property being encumbered by the right-of-way grant to plaintiff and by the utility poles which were still located in the bed of vacated Autumn Avenue and east of Autumn Avenue in Block 408.
The township then instituted proceedings pursuant to N.J.S.A. 40:67-7 to compel Jersey Central Power and Light to relocate its
poles from the easement area to Summer Avenue, an improved street located 200 feet west of Autumn and running parallel therewith. Summer Avenue had apparently been improved by another owner within the industrial complex sometime in 1974. On June 7, 1979 the township adopted a resolution ordering plaintiff to perform such relocation within 30 days at its own expense.
Plaintiff has removed the poles pursuant to a consent order, is about to release the unneeded portion of its easement and right-of-way, and the parties have reserved the issue of liability for the cost of removal and relocation for determination by this court. It has been stipulated that the cost of the work is $10,858, based on figures submitted by plaintiff.
At the outset defendant contends that N.J.S.A. 40:67-7 provided sufficient legal authority for the township to order removal of the facilities from the ...