The opinion of the court was delivered by JACOBS, J.
The Appellate Division affirmed the summary judgment for the plaintiff which had been entered in the Law Division. See City of Trenton v. Lenzner, 29 N.J.Super. 514 (App. Div. 1954). We granted certification under R.R. 1:10-2.
Trenton's parking problem is a serious one and has been the subject of much concern amongst its officials and citizens. In 1948 its board of commissioners adopted an ordinance which, after setting forth that congested street parking was threatening irreparable loss in valuations and was inimical to the general welfare of the community and that it could be reduced by proper off-street parking facilities, created the Parking Authority of the City of Trenton with the powers and duties provided by L. 1948, c. 198 (N.J.S.A. 40:11A-1 et seq.). Immediately after its creation, the Authority
On May 29, 1952 the board of commissioners adopted an ordinance which determined that the city acquire Lenzners' property, described by metes and bounds, by purchase or condemnation "for the purpose of making the same available to the public for the public parking of vehicles." Thereafter the Lenzners instituted a proceeding in the Law Division which attacked the validity of the ordinance and sought to set it aside. In that action the city moved for summary judgment and its motion was granted. See Lenzner v. Trenton, 22 N.J.Super. 415 (Law Div. 1952). No appeal was taken from the resulting judgment for the city and the Lenzners are bound by it. They are not at liberty to relitigate the issues there involved (Bango v. Ward, 12 N.J. 415, 420 (1953); Templeton v. Scudder, 16 N.J.Super. 576 (App. Div. 1951)); in any event, we are satisfied with the correctness of the determinations there made.
L. 1942, c. 138 expressly provides that the governing body of any municipality may, by purchase or condemnation, acquire lands for the purpose of making them available to the public for the public parking of vehicles. There is no question as to the constitutional validity of this legislation; the state has ample power to delegate to its municipal subdivisions power to take private property for public use upon the payment of just compensation. See Abbott v. Beth Israel Cemetery Ass'n. of Woodbridge, 13 N.J. 528,
While the fact that the property is actually being used for parking purposes by its private owners may have an important bearing on the amount of just compensation to be awarded, it does not limit the authority of the governing body to take it for public parking purposes. Nothing in the broad statutory language suggests any such limitation and there is no reason whatever to reach out for its implication. See Const. 1947, Art. IV, Sec. VII, par. 11; Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 71 (1952). By taking the land the city insures not only that its future use will be public parking, but also that it will be available for the urgently needed increase of its parking facilities by the construction of a suitable ramp garage or otherwise. The fact
Negotiations for purchase having been unfruitful, the plaintiff City of Trenton filed a complaint in the Law Division, on August 4, 1953, alleging that it had determined that it was reasonably necessary to acquire by condemnation the described property of defendants Isadore Lenzner and Freda Lenzner and demanding judgment and the appointment of condemnation commissioners in accordance with R.S. 20:1-1 et seq. The defendants filed their answer which embodied various separate defenses and the plaintiff filed a reply. Thereafter the plaintiff moved for summary judgment which was heard and considered by the trial judge on the basis of the record before him which included all of the pleadings, affidavits, depositions and exhibits submitted by the parties. Finding that there was no genuine issue as to any material fact challenged and that the plaintiff was entitled to judgment as a matter of law, the trial judge on October 26, 1953 ordered the entry of judgment for the plaintiff for the appointment of condemnation commissioners to fix "the compensation to be paid for the taking of the lands, premises, property, rights and easements described in the complaint, including the damages, if any, resulting from
The appellants urge that they were improperly denied the "right to a trial." They do not suggest that they were entitled to a jury trial on the application for appointment of commissioners. See L. 1953, c. 20 (N.J.S.A. 20:1-2); In re Housing Authority of Newark, 126 N.J.L. 60, 64 (E. & A. 1941). They contend, however, that they were entitled to present oral testimony before the trial judge and have a plenary trial in the Superior Court. L. 1953, c. 20, provides that the Superior Court shall have full jurisdiction in any action for the appointment of condemnation commissioners and "may proceed in the action in a summary manner or otherwise." The pertinent court rules (R.R. 4:92-1; R.R. 4:85-5) provide that if there is no "genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon." See also R.R. 4:58-3; Taub v. Taub, 9 N.J.Super. 219, 221 (App. Div. 1950). The finding by the trial judge that the record before him disclosed that there was no genuine issue as to any material fact was unanimously concurred in by the Appellate Division; independent examination of the record has led us to the same conclusion. Under these circumstances there can be no doubt as to the adequacy of the trial court's power to deal with and finally dispose of the matter on the application for summary judgment. See City of Newark v. N.J. Turnpike Authority, 7 N.J. 377, 381 (1951).
The appellants contend that the city has other property available on Academy Street and elsewhere in Trenton for public parking and that there was no public
The appellants suggest that the city plans to acquire their property and then transfer it to the Parking Authority which will permit its operation by a private party. The ordinance of May 29, 1952 provided that the city shall acquire the property "for the purpose of making the same available to the public for the public parking of vehicles"; it is clear that the acquisition of the property is limited to the stated purpose. See Hester v. Miller, 11 N.J.Super. 264 (Law Div. 1951), appeal dismissed 8 N.J. 81 (1951). Mayor Connolly testified that the only decision actually made by the city was to acquire the property in accordance with the ordinance, and that although there had been discussions with respect to the possibility of transferring the property to the Parking Authority, no determination on that issue had ever been made. Mr. Connell likewise testified that the Authority had no assurance that the city would transfer the property to it for operation. He testified further that if the city did transfer the property to the Authority, it would consider the most feasible means of increasing its parking facilities through the erection of a ramp garage and that "if it were more economical for the Parking Authority to deal with private enterprise rather than to finance, construct, operate and maintain itself, there is no question in my mind that the Parking Authority would take that means which was most economical." After the city acquires the property the board of commissioners, in the faithful discharge
The only remaining contention which warrants discussion is the appellants' point that the city is seeking to acquire their "parking yard business" without making just compensation. The Appellate Division expressed the view that the real concern of the appellants was that the city would take their land without compensating them for the prospective loss of the profits of their business. It declined to pass on any issues relating to the proper quantum of the award, holding that they must await the report of the commissioners and any ultimate appeal therefrom under R.S. 20:1-16 and R.R. 4:92-6. It is at that stage that a jury trial may be demanded. R.S. 20:1-20; R.R. 4:92-6.
Under the terms of our Constitution and statutes, an owner whose property is being taken for public use must receive just compensation. Constitution 1947, Art. I, par. 20;
Where land is being condemned, courts in our State and elsewhere have held that even though the taking of the land actually results in the loss of the owner's business located thereon, he is not entitled to any independent compensation for the value of the business. See Newark v. Cook, 99 N.J. Eq. 527, 537 (Ch. 1926), affirmed 100 N.J. Eq. 581 (E. & A. 1927); Mitchell v. United States, 267 U.S. 341, 345, 45 S.Ct. 293, 69 L.Ed. 644, 648 (1925); U.S. ex rel. T.V.A. v. Powelson, 319 U.S. 266, 282, 63 S.Ct. 1047, 87 L.Ed. 1390, 1401 (1943); Housing Authority of City of Bridgeport v. Lustig, 139 Conn. 73, 90 A.2d 169 (Sup. Ct. Err. 1952); Banner Milling Co. v. State of New York, 240 N.Y. 533, 148 N.E. 668, 41 A.L.R. 1019 (Ct. App.
Courts have recognized that the foregoing principles may operate harshly in denying to land owners reasonable compensation for their actual loss resulting from the taking of their property; and although varying justifying theories may be found in the judicial opinions, they seem far from compelling. See Nichols, supra, 258. More significant is the increasing tendency displayed in recent cases of giving fair and weighty consideration to the consequential loss of business as an element of the compensation rightly due to the owner. See Kimball Laundry Co. v. United States, supra; Housing Authority of City of Bridgeport v. Lustig, supra; 18 U. of Chi. L. Rev. 349 (1951); 35 Va. L. Rev. 1059 (1949). In the Kimball Laundry Co. case the United States Supreme Court held that where a laundry plant was temporarily condemned its owner was entitled to compensation for the consequential destruction of its trade routes, though admittedly the government did not directly appropriate or have any use for them. In the Lustig case the Supreme Court of Errors of Connecticut dealt with a condemnation report which fixed the value of the owner's poultry market building at $6,500 and then stated that if the owner
"the better reasoned cases hold that, although the value of a business which is being conducted upon the real property condemned may not ordinarily be added to the market value of the realty as damages for the taking, the fact that a given business is in operation on the property should be taken into consideration in determining the market value of the real property if in truth it is a factor in establishing that market value — if, that is, the use of the real property for that purpose enhances the value of it. Edmands v. City of Boston, 108 Mass. 535, 549; King v. Minneapolis Union Ry. Co., 32 Minn. 224, 226, 20 N.W. 135; Pittsburgh, V. & C. Ry. Co. v. Vance, 115 Pa. 325, 334, 8 A. 764; Chairman of Highway Commission v. Parker, 147 Va. 25, 29, 136 S.E. 496; Voigt v. Milwaukee County, 158 Wis. 666, 670, 149 N.W. 392. In particular, it is proper to take into consideration the existence of a going business on the land in question as indicative of the highest economic use to which the land may be put. State ex rel. La Prade v. Carrow, 57 Ariz. 429, 433, 114 P.2d 891; Philbrook v. Berlin-Shelburne Power Co., 75 N.H. 599, 74 A. 873; Hunter's Administrator v. Chesapeake & O. Ry. Co., 107 Va. 158, 165, 59 S.E. 415, 17 L.R.A., N.S., 124."
See State Highway Com. v. National Fireproofing Corp., 127 N.J.L. 346, 348 (E. & A. 1941).
In the instant matter the condemnation commissioners will be governed by R.S. 20:1-9 which provides that they shall view and examine the property and "make a just and equitable appraisement of the value of the same." The property being taken under the terms of R.S. 40:60-25.1 is land which has been operated profitably by the appellants for many years as a parking lot. Its fair market value,
The judgment of the Appellate Division is:
VANDERBILT, C.J. (dissenting).
No one can deny the need of Trenton and many other municipalities for off-street parking facilities, and therefore no one can question the grant of the power of condemnation to municipalities for this purpose. Even property presently used by private owners for furnishing parking facilities to the public may be so acquired by the municipality, if by doing so the public will be provided with greater parking facilities than the private owners are supplying and if the condemnation is made in good faith.
The question here is whether there has been compliance with these conditions. In its brief and at the oral argument and again at the reargument the city reiterated that it intended to build a multi-story ramp garage on the premises in question. When this was questioned by the defendants, counsel for the city agreed at the reargument that the city
The Constitution forbids the condemnation of property for private use; and this is ultimately a judicial question after full inquiry. When land is thus taken, ostensibly for a public use, but in reality for a private use, the invasion of the individual's constitutional right of property is remedial by judicial action. An abuse of the statutory discretion and power is as objectionable here as in other fields of governmental action; compare City of Cincinnati v. Vester, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950 (1930). See 65 A.L.R. 504.
It is urged by the city that if it does not acquire the defendants' property now, there is always the danger that
The individual owners assert that the city is not acting in good faith in condemning their property, and the conduct of the city as outlined herein bears strongly upon that issue. There is, moreover, another factor which deepens the impression that the action of the city in condemning the property is not a bona fide exercise of the power. Directly opposite the parking lot in question is an equally sizable piece of property owned by the city itself. An ancient building known as the Joseph Wood School stands thereon. This building has not been used as a school for 30 years. At the present time only a few rooms are used for the storage of surplus books from the adjoining public library. This piece of property is obviously quite as desirable for parking purposes as the property of the defendants. Is there any reason why the city should not use this practically abandoned property for parking facilities and thus double, without constructing any new buildings, the parking facilities of this part of Trenton? That it has not done so, but has elected to take proceedings that will deprive the defendants of a valuable business without adding to the available parking facilities, constitutes evidence that entitles the defendants to a plenary trial on the issue of the city's good faith, a matter that cannot be disposed of, as was done here, on a motion for summary judgment, Mayflower Industries v. Thor Corp., 15 N.J.Super. 139, 155-157 (Ch. Div. 1951), affirmed for the reasons expressed therein, 9 N.J. 605 (1952).
The necessity of such a trial to protect the defendant property owners is rendered more acute by the fact that under the statutes now on the books the city may without competitive bidding lease the property acquired by condemnation to a private individual or corporation to conduct as a
I would reverse the judgment below and direct a plenary trial of the city's right to condemn the property.
Mr. Justice HEHER has authorized me to say that he joins in this opinion.
For affirmance — Justices OLIPHANT, WACHENFELD, BURLING and JACOBS — 4.
For reversal — Chief Justice VANDERBILT and Justice HEHER — 2.