Piscataway V Halper
Piscataway V Halper
TOWNSHIP OF PISCATAWAY, a
municipal corporation of the
State of New Jersey,
Plaintiff-Respondent,
v.
SOUTH WASHINGTON AVENUE, LLC;
RUTH HALPER, Executrix of the
Estate of Herbert Halper;
LAURENCE HALPER; MARK HALPER;
RUBY HALPER-ERKKILA, M.D.;
AND FAITH ROST,
Defendants-Appellants,
and
UNITED STATES OF AMERICA;
STATE OF NEW JERSEY; JERSEY
CENTRAL POWER & LIGHT CO.;
TEXAS EASTERN TRANSMISSION CORP.;
PUBLIC SERVICE ELECTRIC & GAS CO.;
HELEN HARPER; SIMON HALPER; BELLA
HARPER; RONALD HALPER, BONNIE
HALPER; AND CINDY HALPER-RAIMAN,
Defendants.
___________________________________
TOWNSHIP OF PISCATAWAY, a
municipal corporation of the
State of New Jersey,
Plaintiff-Appellant,
APPELLATE DIVISION
v.
SOUTH WASHINGTON AVENUE, LLC;
RUTH HALPER, Executrix of the
Estate of Herbert Halper;
LAURENCE HALPER; MARK HALPER;
RUBY HALPER-ERKKILA, M.D.;
FAITH ROST; RONALD HALPER;
BONNIE HALPER; AND CINDY
HALPER-RAIMAN,
Defendants-Respondents,
and
UNITED STATES OF AMERICA;
STATE OF NEW JERSEY; JERSEY
CENTRAL POWER & LIGHT CO.;
TEXAS EASTERN TRANSMISSION CORP.;
PUBLIC SERVICE ELECTRIC & GAS CO.;
HELEN HARPER; SIMON HALPER;
AND BELLA HARPER,
Defendants.
________________________________________________________________
Argued April 8, 2008 - Decided
A-3648-05T3
After the
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Halpers, and a jury determined that the fair market value of the
farm was $17,955,000.
Barbara S. Schwartz filed an appeal on behalf of the
Halpers under Docket No. A-3648-05T3, arguing that the
condemnation should be set aside and the property returned to
the Halpers because of alleged conflicts of interest and related
matters.
We consolidated the
appeals.
This action is governed by the Eminent Domain Act of 1971
(the "Act"), N.J.S.A. 20:3-1 to -50, and Article I, paragraph
20, of our State Constitution and the Fifth Amendment of the
Federal Constitution, both guaranteeing that government may not
take private property for public use without just compensation.
The first issue to be resolved is whether a condemnee's
withdrawal of a deposit made by a governmental entity pursuant
to a declaration of taking is a waiver of the right to litigate
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And the
value between the date the complaint was filed and the date the
declaration of taking was filed and the deposit made, and the
increase is not due to governmental action but to market forces
and inflation, the date of valuation must be the date of the
deposit. Therefore, we affirm the judgment.
I
Before stating the case in detail, we note that the record
does not include a transcript of the jury trial because the only
issue respecting that trial is whether the previously selected
date of valuation was correct.
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The
Unsuccessful negotiations
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In
On January 5,
On February
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In
At some
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The
The
trial judge to whom the matter had been assigned agreed with the
Halpers, granting the stay and changing the valuation date to
September 3, 2004, the date on which the declaration of taking
was filed.
and the jury trial occurred in late January 2006, ending with
the $17,955,000 verdict.
On February 6, 2006, Piscataway deposited an additional
$8,574,000 into court.
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at 3:00 p.m. on July 10, 2006, by which time the Halpers were to
have left the property.
II
Before addressing the first issue, we must dispose of a
procedural bar to our consideration of these appeals.
The
A final
Ibid.
Since the
order under appeal does not dispose of all claims, and does not
fall within the categories set forth in Rule 4:42-2, the parties
are not entitled to be heard now as of right.
10
Id. at 550-52.
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Caggiano v.
It
In re
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N.J.S.A.
35, 38 (1975).
course.
N.J.S.A. 20:3-17.
N.J.S.A. 20:3-35.
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N.J.S.A. 20:3-25.
N.J.S.A. 20:3-18.
N.J.S.A.
N.J.S.A. 20:3-11.
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We also noted in
Tassie, that
[t]he rule that a litigant cannot seek
appellate review of a judgment under which
he has accepted a benefit is but a corollary
to the established principle that any act
upon the part of a litigant by which he
expressly
or
impliedly
recognizes
the
validity of a judgment operates as a waiver
or
surrender
of
his
right
to
appeal
therefrom.
[Id. at 525 (citations omitted).]
In Simon v. Simon, 148 N.J. Super. 40, 42 (App. Div.), certif.
denied, 75 N.J. 12 (1977), we said that this rule or principle
governs only where the appeal constitutes a
repudiation of the judgment under which the
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Ohio R.R. Co., 208 U.S. 59, 62, 28 S. Ct. 190, 191, 52 L. Ed.
388, 390 (1907); Hitchcock v. Danbury & Norwalk R.R. Co., 25
Conn. 516, 518-19 (1857); Kile v. Town of Yellowhead, 80 Ill.
208, 211 (1875); Test v. Larsh, 76 Ind. 452, 460-61 (1881);
Holland v. Spell, 42 N.E. 1014, 1015 (Ind. 1896); Shapiro v.
Maryland-Nat'l Capital Park & Planning Comm'n, 201 A.2d 804,
805-06 (Md. 1964); Missouri ex rel. State Highway Comm'n of
Missouri v. Howald, 315 S.W.2d 786, 789 (Mo. 1958); In re
Application of New York Relative to Acquiring Title to Lands in
the Sixth Ward of Manhattan, Required as a Site for a New Court
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House, 111 N.E. 65, 66-67 (N.Y. 1916); State v. Jackson, 388
S.W.2d 924, 925 (Tex. 1965); Burns v. Milwaukee & Mississippi
R.R. Co., 9 Wis. 450, 457 (1859).
That approach
is sensible and fully accords with the New Jersey cases cited
above.
Since
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17
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Id. at 121.
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Five years
Id. at 323.
Id. at 326.
Id. at 324.
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Nor
citations omitted).
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In Housing
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But we have
State, Dept. of
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The
section of the Act on which Piscataway relies is N.J.S.A. 20:311, which reads as follows:
Failure to deny the authority of the
condemnor to condemn in the manner provided
by the rules, shall constitute a waiver of
such defense. When the authority to condemn
is denied, all further steps in the action
shall be stayed until that issue has been
finally determined.
[Emphasis added.]
In County of Sussex v. Merrill Lynch Pierce Fenner & Smith,
Inc., 351 N.J. Super. 66, 72-73 (Law Div. 2001), aff'd, 351 N.J.
Super. 1 (App. Div. 2002), the court held that the stay effected
by N.J.S.A. 20:3-11 expires on the date judgment is given by the
trial court permitting the condemnation action to proceed.
Therefore, Piscataway argues that it could not have filed its
declaration of taking in this case until December 18, 2002.
It
then points out that the Halpers obtained further stays of the
judgment, thereby further preventing the filing of the
declaration of taking until after the Supreme Court denied
certification on June 30, 2004.
We disagree with Piscataway's literal interpretation of
N.J.S.A. 20:3-11.
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N.J.S.A. 20:3-
It is
We perceive no
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procedurally improper.
R. 2:11-3(e)(1)(E).
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