Abbott v. Beth Israel Cemetery Ass'n of Woodbridge

Heher, J.

(dissenting). I find no substantial ground for deviating from the procedure laid down in R. S. 20:1-1, et seq. to determine the compensation payable for the lands taken in the exercise of the sovereign power of eminent domain; quite the contrary. This -is, after all, but a proceeding to settle the elements of value entering into the appraisement of the land taken; and if this course be affirmed as a justifiable exercise of judicial power, then the Declaratory Judgments Act may be invoked whenever there is controversy as to the constituents of land value, in advance of and in derogation of the statutory assessment function. This, I submit, is not the office of the declaratory judgment.

The assessment procedure provided by the Eminent Domain Act affords the mechanism for determining the value of the land, in keeping with the essentials of due process. Three disinterested freeholders are appointed commissioners “to examine and appraise the land or property and to assess the damages,” on notice to the persons interested. R. S. 20:1-6. Ryan v. Housing Authority of Newark, 125 N. J. L. 336 (Sup. Ct. 1940). In the event of an appeal from the report *552 of the commissioners, the court is empowered to direct the framing of “a proper issue for the trial” and “to order a jury struck and a view of the premises.” R. S. 20:1-16. On appeal thus' taken, “the matter of compensation and damage is to be heard anew, independently of the award, as though it had originated in the court, and * * * it is to be decided by the court”; the court is invested with jurisdiction, “generally,” to trjr “the issue as other issues are tried in that court,” and the adjudication shall take the form of a judgment entered upon the verdict of the jury; the judgment “supersedes the award of the commissioners,” and becomes “a new means for the ascertainment of the just compensation which is to be paid to the landowner.” Ringle v. Board of Chosen Freeholders, 56 N. J. L. 661 (E. & A. 1894).

The statutory declaratory judgment was not designed to aid in the fulfillment of the assessment function, as is here proposed. The Eminent Domain Act is in this regard a self-contained measure for the fixing of compensation by a jury trial in a court of plenary jurisdiction; such is the absolute right of the parties in interest.

The adjudicatory declaration sought here, it is stated m the opinion of my brothers, is “that the defendant has not lawfully subjected the 20.70 acres of land in question to cemetery use,” such as will “terminate the ‘uncertainty or controversy’ that gave rise” to this action, using the language of N. J. S. 2A :16—61.

But the judgment cannot settle the question as to whether the lands may fairly be deemed available for cemetery uses, for in determining compensation it is proper to consider the use to which the land is naturally adapted. The inquiry is the market value, according to circumstances and conditions then existing or reasonably to be anticipated in the near future. Ringwood Co. v. North Jersey District Water Supply Commission, 105 N. J. L. 165 (E. & A. 1928). The reasonable use potential is an element to be taken into account. The wants of the community and the advantages of the land for a particular use are factors entering into the *553 inquiry. McCandless v. United States, 298 U. S. 342 , 56 S. Ct. 764 , 80 L. Ed. 1205 (1936); Mississippi & Rum River Boom Co. v. Paterson, 98 U. S. 403 , 25 L. Ed. 206 (1879); 18 Am. Jur. 991 , 992.

The right presently to devote the lands to cemetery uses is not necessarily the determinative inquiry; even though there be no immediate right, their peculiar suitability to such use is ex necessitate a circumstance bearing upon value. The whole is a question for the jury, controlled by the pertinent legal principles. Divided judicial inquiries have their disadvantages. Compare Sisters of Charity v. Morris Railroad Co., 84 N. J. L. 310 (E. & A. 1913). But here the assessing jurisdiction has a statutory genesis, and the procedure provided by the Legislature should be followed, involving as it does the granted right of trial by jury. The appraisement of the lands in the particular circumstances is peculiarly within the province of the jury, subject, of course, to the guidance of the court in matters of law.

It is in the nature of the discretionary declaratory jurisdiction that it may not be invoked where there is actually pending between the same parties an action in which all the issues are determinable. Woollard v. Schaffer Stores Co., 272 N. Y. 304 , 5 N. E. 2d 829 (Ct. App. 1936); 109 A. L. R. 1262. See, also, Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673 , 229 N. W. 618 (Sup. Ct. 1930), 68 A. L. R. 105. See, also, 12 A. L. R. 76; 50 A. L. R. 48; 68 A. L. R. 120; 87 A. L. R. 1219, 1237.

I would reverse the order and dismiss the complaint.

For affirmance—Chief Justice Vanderbilt, and Justices Oliphant, Wacheneeld, Burling, Jacobs and Brennan—■ 6.

For reversal—Justice Heher—1.