SUSSEX RURAL ELEC. COOPERATIVE v. Wantage Tp.

526 A.2d 259, 217 N.J. Super. 481
CourtNew Jersey Superior Court Appellate Division
DecidedMay 13, 1987
StatusPublished
Cited by4 cases

This text of 526 A.2d 259 (SUSSEX RURAL ELEC. COOPERATIVE v. Wantage Tp.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SUSSEX RURAL ELEC. COOPERATIVE v. Wantage Tp., 526 A.2d 259, 217 N.J. Super. 481 (N.J. Ct. App. 1987).

Opinion

217 N.J. Super. 481 (1987)
526 A.2d 259

SUSSEX RURAL ELECTRIC COOPERATIVE, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF WANTAGE, DEFENDANT-RESPONDENT.

Superior Court of New Jersey, Appellate Division.

Argued March 24, 1987.
Decided May 13, 1987.

*483 Before Judges GAULKIN, BAIME and ASHBEY.

*484 Howard P. Shaw argued the cause for appellant (Farrell, Curtis & Davidson, attorneys).

Kenneth N. Laptook argued the cause for respondent (Kimmelman, Wolff & Samson, attorneys; N. Janine Dickey, on the brief).

The opinion of the court was delivered by GAULKIN, J.A.D.

Sussex Rural Electric Cooperative (Sussex) brought this action to recover from the Township of Wantage (Wantage) its costs incurred in relocating poles, wires and other equipment as required by Wantage in connection with the widening and improving of roads along which the Sussex utilities had been placed. The Law Division judge held that Sussex must absorb the costs and accordingly granted summary judgment in favor of Wantage. Sussex now appeals.

I.

Sussex supplies electric power to the area of Wantage known as Lake Neepaulin. In 1953 the entire area, comprising some 500 acres, was owned by William Pearson and his wife. On July 1, 1953 Pearson granted Sussex "the right to enter upon" his land

to place, construct, operate, repair, maintain, relocate and replace thereon and in or upon all streets, roads or highways, abutting said lands an electric transmission or distribution line or system....

At the time of the grant, the tract was entirely undeveloped and there were no roads, improved or unimproved.

Between 1955 and 1958 maps were filed proposing a subdivision for all of Lake Neepaulin. The maps showed proposed roads which had not yet been cleared of vegetation. After the maps were filed, the developers built dirt roads located as the maps indicated, but of narrower width. Various lots in the subdivision were conveyed out; each deed explicitly stated that *485 "no dedication of public use of roads, streets, avenues, ways or beaches is intended to be made by the conveyance hereunder."

Sussex began placing electric poles and wires along the cleared roads as early as 1956. The poles were placed outside the cleared portion of the roads but inside the road boundaries as shown on the filed maps. Until 1975 the roads were privately owned by the developers of Lake Neepaulin and their successors. Between 1975 and 1979, the then owner of the roads deeded them to Wantage, which adopted ordinances formally accepting them as public roads. The dedications and acceptances included all the land within the road boundaries as shown on the filed maps.[1]

Wantage then began to widen and pave the roads and, to do so, required Sussex to relocate its poles and lines. See N.J.S.A. 40:67-7 to 9. Sussex did the relocation work at its own cost but reserved its rights against Wantage. Sussex then brought this action to recover its expenses "in excess of $32,000," claiming that the required relocation constituted a compensable taking. The trial judge rejected that contention, holding that the relocation cost "is a consequential expense [Sussex] must bear as a cost of doing business" and that Sussex had "failed to demonstrate any significant diminution of its rights under the Pearson easement grant to constitute a `taking' mandating compensation."

*486 II.

Whether governmental action amounts to a taking of property is always "a vexing and thorny problem." Washington Market Enterprises, Inc. v. Trenton, 68 N.J. 107, 116 (1975). If there is a taking, both the Federal and New Jersey Constitutions require the payment of compensation. U.S. Const., Amend. V; N.J. Const. (1947), Art. I, par. 20. If there is no taking then "any loss that may have been suffered is damnum absque injuria; there has been a noncompensable governmental exercise of the police power." Washington Market Enterprises, 68 N.J. at 116. Whether the governmental action is so "onerous" as to constitute a taking depends on the facts of each case. Joseph H. Reinfeld, Inc. v. Schieffelin & Co., 94 N.J. 400, 420 (1983) (quoting Lom-Ran Corp. v. Dep't of Environmental Protection, 163 N.J. Super. 376, 386 (App.Div. 1978)).

Sussex and Wantage agree that where a utility is permitted to locate its lines within an existing public right of way, the utility's interest in the public way is subordinate to the public's enjoyment of it. Since "the utility runs the risk that the public welfare may require changes in the road which will call for relocation of its facilities," its costs of relocation are not compensable. Port of N.Y. Auth. v. Hackensack Water Co., 41 N.J. 90, 96-97 (1963). Sussex bases its claim on what it urges is the corollary rule: where utility lines originally placed on private property are required to be relocated to accommodate a subsequently created public right of way, the utility is entitled to be compensated for its relocation costs. See Panhandle Eastern Pipe Line Co. v. State Highway Comm., 294 U.S. 613, 55 S.Ct. 563, 79 L.Ed. 1090 (1935); City of Grand Prairie v. American Tel. & Tel. Co., 405 F.2d 1144 (5th Cir.1969); Tennessee v. United States, 256 F.2d 244 (6th Cir.1958); American Tel. & Tel. Co. v. Madison Parish Police Jury, 465 F. Supp. 168 (W.D.La. 1977); City of Little Rock v. Arkansas Louisiana Gas Co., 261 Ark. 347, 548 S.W.2d 133, 134 (1977); Dept. of Transp. v. Louisville G. & E. Co., 526 S.W.2d 820 (Ky. 1975); *487 Morris & Essex R.R. v. Orange, 63 N.J.L. 252 (E. & A. 1899); Magnolia Pipe Line Co. v. City of Tyler, 348 S.W.2d 537 (Tex.Civ.App. 1961).

Wantage disputes that reading of the case law. Contending that the cases do not draw a distinction "between a private versus public origin of the property right," Wantage points to the following circumstances which it claims justify the denial of compensation here:

1. That by the terms of its easement, the utility was the recipient of a general right of way easement.
2. That no specific location for the utility's transmission lines was ever granted.
3. That the utility's easement rights were granted to facilitate the development of the Lake Neepaulin subdivision and that the utility was given the opportunity to expand its electric services to new customers consistent with the developer's subdivision scheme.
4. That the utility produced no evidence to suggest that it was impaired in maintaining its equipment or in serving its customers as efficiently and satisfactorily as before the relocation of its poles.

We find, contrary to Wantage's contention, that whether the utility lines were initially placed along public or private rights of way is of critical significance. Indeed, that distinction is central to the holding in Port of N.Y. Auth. v. Hackensack Water Co., supra, where Chief Justice Weintraub was careful to point out that the utility was not entitled to compensation because

[t]he public's right in the public easement antedates and is superior to the additional interest the utility obtains from the owner of the fee.

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526 A.2d 259, 217 N.J. Super. 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sussex-rural-elec-cooperative-v-wantage-tp-njsuperctappdiv-1987.