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Sussex Rural Electric Cooperative v. Township of Wantage

Decided: May 13, 1987.

SUSSEX RURAL ELECTRIC COOPERATIVE, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF WANTAGE, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Sussex County.

Gaulkin, Baime and Ashbey. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Sussex Rural Electric Cooperative (Sussex) brought this action to recover from the Township of Wantage (Wantage) its costs incurred in relocating poles, wires and other equipment as required by Wantage in connection with the widening and improving of roads along which the Sussex utilities had been placed. The Law Division judge held that Sussex must absorb the costs and accordingly granted summary judgment in favor of Wantage. Sussex now appeals.

I.

Sussex supplies electric power to the area of Wantage known as Lake Neepaulin. In 1953 the entire area, comprising some 500 acres, was owned by William Pearson and his wife. On July 1, 1953 Pearson granted Sussex "the right to enter upon" his land

to place, construct, operate, repair, maintain, relocate and replace thereon and in or upon all streets, roads or highways, abutting said lands an electric transmission or distribution line or system. . . .

At the time of the grant, the tract was entirely undeveloped and there were no roads, improved or unimproved.

Between 1955 and 1958 maps were filed proposing a subdivision for all of Lake Neepaulin. The maps showed proposed roads which had not yet been cleared of vegetation. After the maps were filed, the developers built dirt roads located as the maps indicated, but of narrower width. Various lots in the subdivision were conveyed out; each deed explicitly stated that

"no dedication of public use of roads, streets, avenues, ways or beaches is intended to be made by the conveyance hereunder."

Sussex began placing electric poles and wires along the cleared roads as early as 1956. The poles were placed outside the cleared portion of the roads but inside the road boundaries as shown on the filed maps. Until 1975 the roads were privately owned by the developers of Lake Neepaulin and their successors. Between 1975 and 1979, the then owner of the roads deeded them to Wantage, which adopted ordinances formally accepting them as public roads. The dedications and acceptances included all the land within the road boundaries as shown on the filed maps.*fn1

Wantage then began to widen and pave the roads and, to do so, required Sussex to relocate its poles and lines. See N.J.S.A. 40:67-7 to 9. Sussex did the relocation work at its own cost but reserved its rights against Wantage. Sussex then brought this action to recover its expenses "in excess of $32,000," claiming that the required relocation constituted a compensable taking. The trial judge rejected that contention, holding that the relocation cost "is a consequential expense [Sussex] must bear as a cost of doing business" and that Sussex had "failed to ...


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