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State v. Rosenblum

Decided: April 10, 1985.

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT,
v.
CLARA ROSENBLUM, ET AL., DEFENDANTS-APPELLANTS



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Matthews, Furman and Havey. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

[200 NJSuper Page 212] Defendants are the owners of land, a portion of which was taken by eminent domain by the Commissioner of Transportation as part of a highway widening project. Prior to the taking, defendants' property consisted of a 30 acre parcel located on the corner of Route 9 and Sunnyside Road in Howell Township, Monmouth County. The land, high along Sunnyside Road, dropped off in a southerly direction until it reached its lowest point. A 16" pipe traversed Route 9 and carried water from the east or upland side of the highway, which was owned by the State, to the low-lying subject property on the west side of Route 9. A ditch, located across the property's frontage,

allowed water to flow in a southerly direction to the low point on the property's frontage and eventually to flow in a southwesterly direction into a creek. The property was subject to an easement granted to the State in 1927 by defendants' predecessor in title.

The State acquired a .657 acre L-shaped piece of property from the defendants in fee simple absolute. The purpose of this acquisition was for the widening of Sunnyside Road and the dualization of Route 9; the taking to provide the area for the southbound lanes of Route 9. The State also acquired an easement for the maintenance of slopes. The highway is being raised approximately two feet. The slope easement will accommodate the change in grade from the highway to the property. Finally, the State is upgrading its drainage system, acquiring a drainage easement area for the construction and maintenance of a box culvert and a pipe.

The ditch which prior to the taking was located across the property's frontage will be filled in and made a part of the highway, and the water will be piped under the road to the new drainage easement area. At the location of the new easement area, there will be a 48" pipe constructed. This pipe will carry water from the east side of the highway to the subject property on the west side of Route 9. The existing 16" pipe will be plugged. The new pipe will be located at the property's lowest point, about 240 feet south of the existing pipe.

Condemnation commissioners awarded $19,600 for the property taken to defendants, who thereafter appealed to the Law Division. The case was tried to a jury on the sole issue of the amount of compensation to be awarded defendants. The jury awarded defendants $27,500 in damages. Defendants, subsequently, filed a motion for a new trial or, alternatively, for additur. When the trial judge denied both aspects of the motion, defendants appealed to this court.

Defendants contend that the trial judge erred in instructing the jury "not to award compensation for damages resulting

from the [State's] deposit of drainage water on the remainder portion of . . . [defendants'] tract" unless the jury first found that the State "had been unreasonable in directing the flow [of surface drainage water] over the Defendants' remaining lands." We disagree. The jury charge, when read as a whole, was accurate and proper. See State v. Wilbely, 63 N.J. 420, 422 (1973).

The State Highway Commissioner is empowered by N.J.S.A. 27:7-22 to acquire "lands or rights therein whether for immediate or future use by gift, devise or purchase, or by condemnation in the manner provided in chapter 1" of the Eminent Domain Act. When the State takes private property for a public purpose under the provisions of the Eminent Domain Act of 1971, N.J.S.A. 20:3-22 et seq., "the property owner is entitled to just compensation." State v. Silver, 92 N.J. 507, 513 (1983). See N.J. Const. (1947), Art. I, ยง 20. This includes just compensation for the property taken and damages to any remaining property:

The condemnee shall be entitled to compensation for the property, and damages, if any, to any remaining property, together with such additional compensation as provided for herein, or as may be fixed according to law. [ N.J.S.A. 20:3-29]

To be compensated, however, damages to the remaining property must proximately result from the portion of original tract condemned, rather than from the State's use of other land or from another person's use of his land. P.S.E. & G. v. Oldwick Farms, 125 N.J. Super. 31, 35 (App.Div.1973), certif. den. 64 N.J. 153 (1973); ...


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