Warmec Corp. v. State Highway Commission , 10 N.J. Misc. 791 ( 1932 )

Pee Curiam.

This is a writ of certiorari allowed by the Chief Justice to review an order made by him under date of June 13th, 1931, appointing commissioners for the awarding of compensation for the taking of lands of the prosecutor by the state highway commission. It appears that a portion of the lands to be taken were to be used by the highway commission in the construction of route 21, and a portion were to be conveyed to the city of Newark for the widening of Mechanic street.

Prosecutor’s main contentions are (1) that the state highway commission was authorized to take only an easement and not the fee; and (2) that the taking of lands to be used by the city of Newark is illegal.

The first question is whether or not the prosecutor is entitled to challenge the proceedings by this writ. The petition in condemnation was filed May 29th, 1931, on which date June 13th was fixed as the time for the appointment of commissioners. On June 13th, 1931, the attorneys for prosecutor filed objections to the appointment which raised all the objections now sought to be urged under this writ. The Chief Justice signed the order and fixed September 30th, 1931, as the last day for the filing of the report. No attempt was made on June 13th, or for some time thereafter, to review the appointment by certiorari.

The commissioners met and on July 27th, 1931, made an award of $150,953. It is stated in the brief of the defendants that the prosecutor participated in the proceedings before the commissioners. Whether or not prosecutor participated in the hearing of the commissioners, it does appear that the report of the commissioners shows that prosecutor was notified of the time and place of hearing as provided in the order of appointment of such commissioners. On August 3d, 1931, the highway commission filed notice of appeal from the award to the Circuit Court. Prosecutor obtained the writ of certiorari on September 26th, 1931.

1. Defendant argues that prosecutor is in laches. In Slocum v. Neptune, 68 N. J. L. 595; 53 Atl. Rep. 301, the Supreme Court said:

‘^Whatever would have been the status of the prosecutors had they promptly attacked the order appointing commissioners, we think that they are now estopped from challenging any of the proceedings. They had notice in advance of the proposed ordinance; they appeared without objection on the appointment of commissioners, and before those officers they contended only for satisfactory compensation. Their first objection of illegality comes after their experiment in that respect has proved disappointing.

In the instant case, after filing their objections to the appointment of commissioners, the prosecutor elected not to continue with the challenge to the validity of the proceeding but appeared before the commissioners to seek an adequate award. Even after the award prosecutor took no steps, apparently being satisfied with the posture of the case, and it was not until the appeal to the Circuit Court by the highway commission that the attempt was made to upset the proceeding ab initio.

The writ is dismissed, with costs.