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State v. Whitehead Brothers Co.

February 6, 1986

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF,
v.
WHITEHEAD BROTHERS COMPANY, INC., DEFENDANT



DeSimone, A.j.s.c.

Desimone

This is a condemnation action in which a defendant brings a motion in limine to establish the evidence it may be allowed to use at trial.*fn1 Defendant, Unimin Corporation, has an interest in the case which involves sand deposits and a nearby factory used for processing sand. The issues presented are the value of land and severance damages, and Unimin asks for a ruling that the following are admissible: (1) evidence that sand reserves enhance the value of condemned land, (2) evidence of the value of the land, based upon capitalization, (3) evidence of severance damages to Unimin's processing plant, and (4) evidence of the condemnation's impact on Unimin's business operations. The court rules that only the first request is granted and that the remaining three are denied, for the reasons stated herein.

The history of this case has its beginnings in wildlife. Over the years the bald eagle has become increasingly rare in New Jersey. While its existence in this State may not be well-known, one nesting pair of bald eagles still remains in a place called Bear Swamp in Cumberland County. Presently, the Bear Swamp, which is the last major hardwood swamp forest in New Jersey, offers the high nesting and roosting trees, and the

seclusion and protection required by the bald eagles. The nest itself is found in the largest pond pine (Pinus seratina) ever recorded in New Jersey. After studying the problem, the New Jersey Department of Environmental Protection began condemnation proceedings to protect the eagles from public harassment and to increase the possibility of eagle nesting in the future. Eventually over 1100 acres were condemned as a buffer zone for the eagles. Most of the condemned acreage covered several parcels owned by two companies known as Whitehead Brothers and M.J. Dilks & Company. Although Whitehead Brothers owned the greater amount of property taken by the State, high-quality sand deposits were common to both of the properties.

Unimin is in the business of mining, producing and selling high quality silica sand, and became involved in the case because it leased the right to mine sand found in both properties. While the condemnation has been successful in protecting the bald eagles' nest, the company's plans to mine the sand have languished because of the taking. Therefore, Unimin wishes to participate in the hearing in this matter, and wants to ensure that the presence of sand is properly considered in the valuation of the property.

In addition to the sand deposit, defendant owns and operates a factory on the Whitehead property which it uses to process sand. Unlike the situation involving the sand, however, the site of the factory has not been included in the condemnation. Nevertheless, it is argued that the operation of the factory will be severely depressed by the end of Unimin's lease on the condemned part of the Whitehead property. Unimin describes the sand on the Whitehead property as particularly attractive because it is of high quality and is easy to mine because of its location near the surface. Defendant does not presently mine sand on the Whitehead property, and acknowledges that the performance of the nearby factory is also not impaired at this time. However, when it needs sand in the future and turns its attention to the Whitehead property, Unimin argues that the

useful life of the plant will be shortened because the reserve will have disappeared. Simply stated, the contention is that the State is taking the efficient operation of a factory for which it should give compensation. Unimin, therefore, requests severance damages.

Procedurally, this motion is in limine. While there is no rule or statute that expressly authorizes it, the procedure is recognized as part of the civil procedure of the courts here and in most other jurisdictions. Not only is the motion an aggressive trial technique, but it is an increasingly popular method of getting an early ruling on the admissibility of evidence. 21 Wright & Graham, Federal Practice and Procedure, ยง 5037 at 193. Under the right circumstances, the motion provides an excellent framework for a ruling. Recently, the Third Circuit noted that the in limine procedure often permits more thorough briefing and argument than would be likely if the proceedings are deferred. In Re Japanese Electronics, 723 F.2d 238, 260 (3 Cir.1983). On the other hand, it must be stated that this court is vigilant for requests that may be premature instead of early; proofs which can only develop in the environment of the hearing will be left for a decision until that time.

In this case, both parties are faced with imminent discovery requirements, including the exchange of expert's reports and a list of comparable sales and leases under R. 4:73-11. The complex nature of Unimin's proposed evidence creates substantial demands in both its presentation and rebuttal. A resolution at this time avoids wasted effort and the possibility of a new trial conducted in error. When considered in light of the thorough arguments presented by both parties, Unimin's motion appears to be both conscientious and ripe for a decision. For these reasons, the court has consented to rule upon defendant's motion.

Unimin's first request is straightforward. It wants the opportunity to participate in the valuation of the Whitehead property. In this respect, the ...


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