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County of Monmouth v. Kohl

Decided: July 2, 1990.


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

Michels, Deighan and Brochin.

Per Curiam

This is a condemnation case. Defendants William A. Kohl and Patricia J. Kohl owned a plot of land, slightly less than an acre in area, which had a frontage of approximately 71 feet along the southerly right-of-way of Monmouth County Route 520 in Middletown, New Jersey. Where the Kohls' property was contiguous with the right-of-way, the roadway curved to the south. A building on their property extended almost to the highway right-of-way and interfered with the sight lines of east bound motorists as they were approaching the curve. The County therefore undertook to acquire a strip of the Kohls' property fronting on the highway and to demolish the building insofar as necessary to eliminate the interference.

Monmouth County's complaint for condemnation described the property to be taken by metes and bounds and also included a sketch of the Kohls' entire lot, of the part to be condemned, and of the adjacent section of the highway. The metes and bounds description and the sketch showed that the strip of defendants' property which the County was taking was bounded on the north by the highway, on the east and west by their lot lines, and on the south by a line approximately 17 feet distant from and parallel to the highway right-of-way.

The description and sketch annexed to the complaint indicated that the property being taken represented approximately three percent of the total area of the Kohls' lot and included the front portion of their building. The building consisted of a one-story front section and a one-and-a-half story rear section. Only part of the front section of the building was within the strip of

property which the County condemned. But if part of the front section of the structure was demolished, the entire front section would be unusable and would have to be razed. The one-and-a-half story rear section, however, was structurally independent of the front section and, with cosmetic repairs where the two sections were severed, would continue to be usable. Just compensation for the condemnation therefore included the fair market value of the land which was taken and of the entire front section of the building which was to be demolished, and the cost of making the cosmetic repairs to the remaining structure.

The complaint alleged that just compensation was $35,000, and that sum was deposited in Court. An order for judgment and for the appointment of commissioners was entered without opposition, and the defendants withdrew the funds on deposit. The commissioners awarded $35,000 as just compensation, and the defendants appealed by trial de novo before a jury pursuant to N.J.S.A. 20:3-13. The jury returned a verdict of $50,000 as damages for the strip of property taken in fee, for the value of the building which was demolished, including that part of the building which extended beyond the property taken, and for the cost of restoring the rear section of the building after the front section had been razed.

The defendants have appealed the judgment entered on that verdict to this court. They allege that the description of the property to be taken which was contained in the plaintiff's complaint was so ambiguous as to deprive the trial court of jurisdiction and that the court erred in not granting their request to adjourn the trial. We disagree and affirm.

At the commencement of the trial on the issue of just compensation, the County made a motion "for an order regarding the description of the taking." It submitted an affidavit in support of its motion which outlined the history of the proceedings and asked the court to declare that:

the taking is for the strip of land, approximately 17 feet wide and 71 feet long containing approximately 1246 +- s.f. and that this acquisition involved compensation for the 694 +- s.f. front one-story section of the building which would have been demolished by the County . . . [and] that the property owner should be barred from claiming that there is any additional taking.

The responding certification filed on behalf of the defendants contended that in addition to the strip of land described in the complaint, "there is also a taking of a site [sic] easement which covered the land upon which the front section [of the building] stood that was not within the shaded area." This allegation was based upon a legend on the sketch of the taking which reads, "Front section of the building is to be acquired and removed for sight distance purposes." An arrow points from that ...

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