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Klein v. State

Decided: May 7, 1993.

MARVIN KLEIN, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, ITS AGENTS, SERVANTS AND REPRESENTATIVES, INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANT-RESPONDENT



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

Pressler, Muir, Jr., and Kestin. The opinion of the court was delivered by Muir, Jr., J.A.D.

Muir

This appeal is from a summary judgment dismissing plaintiff's inverse condemnation complaint. The appeal centers on plaintiff's claim of a right of access to a railroad line known as the Harbor Industrial Track (Harbor Track) and whether plaintiff demonstrates a constitutional taking occurred. We affirm.

The record facts are essentially undisputed. Plaintiff, either through a corporation or individually, has owned, since 1971, a warehouse that adjoins Route 169 in Bayonne. In 1971, through the corporation, plaintiff constructed the warehouse. As part of the construction, the corporation installed railroad siding tracks next to the warehouse. Those tracks converged and connected with a Lehigh Valley Railroad (Lehigh) spur that crossed Route 169 to the Harbor Track.

On July 29, 1971, plaintiff, doing business as Nevins Distribution Center, signed a "Sidetrack Agreement" with Lehigh. The agreement covered the use, ownership, and maintenance of three sections of track. From a review of the record, it is evident the three sections described are two converging siding tracks and the track that connected them with the Lehigh spur. A rider to the agreement called for ownership of the connecting track to pass to Lehigh upon termination of the agreement by Lehigh "for any reason."

Lehigh terminated the agreement March 4, 1976. Under the Regional Rail Reorganization Act of 1973 (45 U.S.C.A. § 701, et seq.), Conrail replaced Lehigh as the operator and owner of the Harbor Track. The Conrail takeover effected Lehigh's termination of the private siding agreement for servicing plaintiff's warehouse.

After Conrail took over, it provided no service to the warehouse and plaintiff sought none. The only record reference to the post-Conrail

takeover period is an inter-departmental memorandum from defendant's file. The memorandum refers to Conrail's 1982 ICC approved abandonment of the Harbor Track and Conrail's 1984 transfer of ownership to the State of the area for servicing plaintiff's warehouse.

On October 10, 1985, defendant, as part of its project to widen Route 169, offered plaintiff $4,500 for plaintiff's right to operate and utilize the existing rail spur "together with all right title and interest" plaintiff "may have" in Route 169 or the adjoining roadway. The underlying appraisal stated "this denial of access precludes the owner from use of the unused, stone covered unfunctional R.R. Siding, the future use of which the Appraiser feels was highly speculative . . . ." When plaintiff demanded $2,000,000, negotiations terminated. In August 1987 defendant concluded, based on the noted inter-departmental memorandum, that plaintiff had no compensable interest. Defendant thereafter abandoned its efforts to acquire the "right of access."

Earlier in 1987, Conrail sent to plaintiff's tenant, H & M, a $2,000 "bill" for "1986 Industrial Switch Connection Maintenance." At a time when the plaintiff's siding tracks were covered with crushed stone and Conrail had abandoned the Harbor Track and its ability to service plaintiff's warehouse, the bill offered H & M the option, by checking the appropriate block to indicate its choice, of paying $2,000 or authorizing removal of the "switch connection at our plant." While no explanation is given for Conrail's action, plaintiff does not assert he or H & M took any action. Plaintiff, nonetheless, claims the switch maintenance proposal establishes his right of access to the Harbor Track.

On May 17, 1991, plaintiff instituted this action by way of order to show cause and verified complaint. At the time, plaintiff rented the warehouse as a truck-shipping center. The State, apparently prior to institution of suit and to accommodate the warehouse tenant, ...


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