A-117-11 Norfolk Southern Railway Co. v. Intermodal Properties, LLC (070240) , 215 N.J. 142 ( 2013 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Norfolk Southern Railway Company v. Intermodal Properties, LLC (A-117-11) (070240)
Argued May 14, 2013 -- Decided August 6, 2013
HOENS, J., writing for a unanimous Court.
In this appeal, the Court considers two statutory provisions relating to the eminent domain power vested in
public utilities and railroads: (1) the limitation in N.J.S.A. 48:3-17.7 that a public utility’s taking of private property
be “not incompatible with the public interest”; and (2) the requirement in N.J.S.A. 48:12-35.1 that a railroad may
only take property to the extent that the “exigencies of business may demand.”
Plaintiff Norfolk Southern Railway Company owns and operates Croxton Yard, a large intermodal freight
facility in Secaucus, New Jersey. At Croxton, which is open nearly around the clock, freight containers are
transferred between trains and tractor-trailer trucks for delivery to final destinations. Containers are off-loaded from
trucks or trains and placed in parking spaces prior to being transferred to the next transportation modality. The yard
is typically at eighty percent capacity, and over 1,500 trucks pass through it each day. In order to remain efficient,
Norfolk Southern must limit dwell time within the yard, which is a measure of the time it takes a truck to enter and
leave the yard, as well as how long a container stays in the yard between off-loading and pick-up. By 2002, existing
traffic had caused double-parking of containers and increased dwell time, and business was expected to continue to
grow. The railroad’s future plans included the Crescent Corridor project, which would expand rail service from
ports in New York and New Jersey across the United States and into Mexico. In 2004, Norfolk Southern decided to
expand the yard by acquiring three adjacent properties, including one owned by defendant Intermodal Properties,
LLC. Intermodal’s property would provide 291 additional parking spaces and would connect Croxton with Norfolk
Southern’s land on the other side of Intermodal’s property. The property’s proximity to the tracks also would
improve efficiency without increasing dwell time. Intermodal rejected Norfolk Southern’s offers, and the railroad
initiated condemnation proceedings through a petition filed with the New Jersey Department of Transportation,
which referred the contested case to an Administrative Law Judge (ALJ).
Intermodal proposed to use the property as a parking facility for the Secaucus Junction passenger rail
station, a use it contended was more compatible with the public interest. The ALJ precluded Intermodal from
invoking the prior public use doctrine because the property was not being used for a public purpose and was not
zoned to permit a parking facility. Intermodal succeeded in having the property rezoned, but the ALJ deemed this
irrelevant since Intermodal presented no evidence that any entity was willing to enter into a contract for public
parking. In contrast, the railroad’s condemnation would advance the public interest in several ways, including
alleviating highway congestion, reducing dwell time, and increasing railroad efficiency. The ALJ also disagreed
with Intermodal’s contention that the statutory provision permitting a taking only “as exigencies of business may
demand” required the railroad to demonstrate an urgent need. Instead, the ALJ found that the language permitted
condemnation when necessary to meet business demands, although more than mere convenience was required to
justify the taking. In light of the projected rapid growth of intermodal business and the planned Crescent Corridor
project, the ALJ concluded that Norfolk Southern had satisfied this requirement.
Intermodal appealed, and the Appellate Division affirmed the ALJ’s findings with respect to the two issues
in dispute here. Norfolk S. Ry. Co. v. Intermodal Props., LLC, 424 N.J. Super. 106 (App. Div. 2012). The panel
agreed with the ALJ’s factual findings, concluding that permitting the railroad to exercise its eminent domain power
was not incompatible with the public interest. The panel also agreed that Intermodal was precluded from presenting
evidence of its proposed future use and could not invoke the prior public use doctrine. Finally, the panel adopted the
ALJ’s interpretation of “exigency,” finding that the railroad’s foreseeable future needs were reasonable business
needs requiring acquisition of Intermodal’s property. The Court granted Intermodal’s petition for certification. 210
N.J. 261 (2012).
HELD: Norfolk Southern’s proposed use meets the requirement of N.J.S.A. 48:3-17.7 that the taking be “not
incompatible with the public interest.” Intermodal may not invoke the prior public use doctrine because it lacks the
power to condemn and its proposed use is neither prior nor public. As used in N.J.S.A. 48:12-35.1, “exigencies of
business” does not necessitate an urgent need for land in order to justify a taking. Rather, it limits a railroad’s power
to condemn to those circumstances where the general needs or ordinary course of business require it.
1. N.J.S.A. 48:3-17.7 requires that a railroad’s taking by eminent domain be “not incompatible with the public
interest.” New Jersey courts have found that railroads and their related facilities are public uses. The question of
whether a property owner can defeat a railroad’s exercise of eminent domain by introducing proofs that the owner’s
proposed use would better serve the public interest requires analysis of the prior public use doctrine. That doctrine
prohibits condemnation where a proposed use will either destroy an existing public use or prevent a proposed one.
The property owner invoking the doctrine also must have the power to condemn. At the time the railroad sought to
condemn Intermodal’s property, Intermodal’s use was not public, and its successful rezoning is irrelevant because
there is no evidence the proposed future use would be anything but a private venture. Intermodal cannot invoke the
prior public use doctrine because it does not have condemnation authority and its proposed use, a speculative plan
for a profit-making parking facility, is neither prior nor public. Finally, N.J.S.A. 48:3-17.7 focuses on the
condemnor’s proposed use and does not require consideration of any alternative proposals that may be more in the
public interest. Norfolk Southern’s proposed use meets the statutory requirement. (pp. 24-30)
2. When interpreting statutory language, a court’s primary task is to understand and give effect to the Legislature’s
intent, looking first to the plain language of the statute and turning to other interpretive aids in the face of ambiguity.
N.J.S.A. 48:12-35.1 limits a railroad’s power to condemn to circumstances “as exigencies of business may demand.”
Modern understandings of words or phrases may not be appropriate guides in statutory interpretation where, as here,
the statute in question was crafted more than a century ago. Modern day definitions of “exigency” are inconsistent
and lead to contrary conclusions, requiring consideration of related legislation and decisions published during the
timeframe when the phrase was chosen by the Legislature. Review of these materials reveals that, in the past, the
phrase “exigencies of business” was regarded as a term of art used to mean the general needs or ordinary course of
business, rather than the modern day suggestion of an urgent or pressing need, which is derived from contemporary
criminal jurisprudence. The phrase “exigencies of business” must be interpreted in accordance with the manner in
which it was used when the language was chosen. This interpretation is the most sensible one in light of the way in
which railroads are developed and built, requiring long-term planning. There is no basis on which to conclude that
the Legislature intended to demand that railroads prove an urgent, immediate, or emergent need for land as a
prerequisite to exercising their statutory condemnation authority. (pp. 30-42)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and PATTERSON; and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE HOENS’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-117 September Term 2011
070240
NORFOLK SOUTHERN RAILWAY
COMPANY, a Virginia
Corporation,
Petitioner-Respondent,
v.
INTERMODAL PROPERTIES, LLC,
Respondent-Appellant.
Argued May 14, 2013 – Decided August 6, 2013
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 424 N.J. Super. 106 (2012).
Eric D. McCullough argued the cause for
appellant (Waters, McPherson, McNeill,
attorneys; Mr. McCullough and James P.
Dugan, of counsel).
Alan P. Fox argued the cause for respondent
(Capehart & Scatchard, attorneys; Mr. Fox
and John K. Fiorilla, of counsel).
Carl A. Wyhopen, Deputy Attorney General,
submitted a letter on behalf of respondent
Commissioner of Transportation (Jeffrey S.
Chiesa, Attorney General of New Jersey,
attorney).
Nancy Winkelman submitted a brief on behalf
of amici curiae The American Short Line &
Regional Railroad Association, The
Association of American Railroads,
Consolidated Rail Corporation, CSX
Transportation, Inc., and The New Jersey
Short Line Railroad Association (Schnader
Harrison Segal & Lewis, attorneys).
JUSTICE HOENS delivered the opinion of the Court.
The State’s power to condemn private property is strictly
limited by the constitutional rights of citizens to be free of
takings without just compensation. See U.S. Const. amend. V;
N.J. Const. art. IV, § 6, ¶ 3. Moreover, as a further means to
protect the constitutional rights of the people, the Legislature
enacted the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50,
to govern the manner in which the State may exercise its
authority to condemn.
In addition to the general statutory framework embodied in
the Eminent Domain Act, our Legislature has enacted other
statutes that govern the exercise of the power of eminent
domain, including two that are at the center of the dispute now
before this Court. The first of these statutes authorizes
public utilities, including railroads, to exercise the power of
eminent domain and defines the circumstances and the manner in
which they may do so. See N.J.S.A. 48:3-17.6 to -17.8. The
second of these statutes applies specifically to railroads and
further defines the extent of their authority to condemn. See
N.J.S.A. 48:12-35.1.
This appeal arises from the exercise of the power of
eminent domain by plaintiff, Norfolk Southern Railway Company,
as a means to take property owned by defendant, Intermodal
Properties, LLC, for use in the expansion of the railroad’s
2
facility in Secaucus. That exercise by the railroad of its
authority to condemn was challenged by defendant, leading to
decisions by an Administrative Law Judge (ALJ) and by the
Appellate Division interpreting the two statutes and giving rise
to the two questions of statutory interpretation that are now
before this Court.
First, we are called upon to determine whether the
railroad’s taking of the property met the statutory proscription
that it be “not incompatible with the public interest[.]”
N.J.S.A. 48:3-17.7. Second, we are asked to consider whether
the railroad demonstrated that the taking of defendant’s
property was occasioned by the “exigencies of business” within
the meaning of that phrase as it is used in the statute that
governs takings by railroads in particular. N.J.S.A. 48:12-
35.1.
I.
Norfolk Southern owns a large tract of land in Secaucus,
comprised of between 240 and 275 acres, where it operates a
freight facility known as Croxton Yard (Croxton). Croxton is an
intermodal freight facility, meaning that it accommodates
transportation of goods by more than one form, or modality, of
carrier, as for example, by rail and by truck. At Croxton,
freight containers are transferred between trains and tractor-
3
trailer trucks to facilitate the transport of freight to its
eventual destination.
Norfolk Southern operates the Croxton facility nearly
around the clock, spanning twenty-four hours each weekday and
sixteen hours each day on weekends. According to a 2007
estimate, approximately 1,500 to 2,000 trucks then moved through
Croxton each day, accounting each month for approximately 18,000
lifts, a term that refers to the loading and unloading of a
container from a train.
Containers are off-loaded at Croxton and moved to parking
spaces within the yard prior to being loaded onto the next
transportation modality for distribution. Parking spaces are,
on average, filled with containers and trailers to eighty
percent of capacity, reaching one hundred percent full to
capacity on Monday mornings. In addition, elsewhere in the
facility, there is an area where empty containers are stored
while waiting to be reloaded onto trains as space becomes
available. In 2007, there were an average of 400 to 500 empty
containers parked in that area each week, with the total
sometimes reaching 1,000.
Rail carriers such as Norfolk Southern compete for
customers, requiring that they maintain efficiency. One measure
of efficiency that is significant to customers is dwell time.
As the ALJ found, dwell time is
4
a measurement of how long it takes for a
truck to enter a yard and depart the yard
[and] is also used as a measurement of the
amount of time that a container stays in the
yard from the time it is off-loaded from the
train until it is picked up by the carrier.
. . . If dwell time increases significantly,
it can reach a point where it is no longer
profitable for customers to ship by
intermodal and they can decide to move cargo
to another carrier or by truck.
In 2002, Norfolk Southern concluded that its intermodal
business in general was expanding rapidly and that, in order to
meet the anticipated demand, it would need to expand the Croxton
facility. That conclusion was based on a variety of
considerations. First, the existing traffic at Croxton had
already led to double-parking of containers, which made it
difficult to move trucks around the yard and increased dwell
time. Second, Norfolk Southern projected that freight growth in
New Jersey, by some estimates, would double within ten to
fifteen years and, according to other projections, would
continue to grow for twenty-five years. Third, the railroad
projected that the overall traffic using Croxton would increase
based in part on forecasts prompted by a new undertaking known
as the Crescent Corridor Project. That project was a long-range
plan by the railroad to expand rail service from ports in New
Jersey and New York into the southeastern and western regions of
the United States and thereafter into Mexico.
5
Norfolk Southern concluded that the solution to all of its
growth concerns was to increase its facilities at Croxton.
Moreover, the railroad determined that it would need to acquire
nearby or adjacent properties in order to accommodate the
expansion at Croxton. As a result, in May 2004, the railroad’s
managers decided to sell a piece of property across from Croxton
that was owned by the railroad and to use the proceeds to
acquire three properties they believed were needed for the
expansion of their facility. One of those properties is owned
by Intermodal.
Intermodal’s property, comprising approximately 5.99 acres,
is adjacent to Croxton. It is currently the site of an 80,000
square foot warehouse which, at all times relevant to this
dispute, was leased by Intermodal to a company that operated a
freight-forwarding business. Acquisition of Intermodal’s
property would allow the railroad to create an additional 291
container parking spaces and would connect Croxton with another
small parcel of land on the other side of Intermodal’s property
that is owned by Norfolk Southern. In addition, because
Intermodal’s property is close to Croxton’s tracks, it would not
increase dwell time and would improve the efficiency of the
operations at Croxton.
At the time when Norfolk Southern embarked on its effort to
acquire the property, the railroad projected it would need the
6
Intermodal property within five years. Norfolk Southern entered
into negotiations to acquire the Intermodal property, but its
offers were rebuffed. By September 2005, Intermodal had
informed the railroad that it was not interested in selling the
property. As a result, Norfolk Southern initiated condemnation
proceedings through a petition filed with the New Jersey
Department of Transportation (NJDOT) as a means to acquire the
Intermodal property.
A.
The matter was deemed to be a contested case, referred by
NJDOT to the Office of Administrative Law (OAL) and assigned to
an ALJ. Before commencing the hearing on the railroad’s
petition, the ALJ considered, and decided, the two issues that
were raised by Intermodal and are now before this Court. The
ALJ’s determination of those issues, to a large extent, shaped
the testimony and evidence that the parties offered.1
1
The ALJ also addressed an issue arising from the amendment,
effective January 13, 2008, of one of the statutes governing
this dispute. That is, N.J.S.A. 48:12-35.1 was amended to
include a requirement that a railroad seeking to condemn
property establish that “alternative property suitable for the
specific proposed use of the property to be taken is unavailable
. . . and that the interest in the property to be taken does not
exceed what is necessary for the proposed use[.]” L. 2007, c.
290, § 1. The ALJ agreed with Norfolk Southern that the
amendments were preempted by federal law and therefore precluded
Intermodal from presenting any evidence on the issue. The
Appellate Division reversed, determining that the amendments
were not preempted by federal law, and remanded the matter to
the OAL for further proceedings. Norfolk S. Ry. Co. v.
7
Intermodal’s first argument focused on the statutory
command that the taking be “not incompatible with the public
interest[.]” N.J.S.A. 48:3-17.7. In particular, Intermodal
sought to offer evidence that it proposed to use its property as
a parking facility that would serve the nearby Secaucus Junction
passenger rail station. It argued that its proposed use would
be more compatible with the public interest than the use
proposed by Norfolk Southern and that the railroad therefore
should be prohibited from exercising the power to condemn.
The ALJ rejected Intermodal’s proffer for two reasons.
First, observing that Intermodal’s property was not zoned for
use as a parking facility, the ALJ concluded that Intermodal
could not demonstrate that its property could be used for the
purpose it proposed. Second, the ALJ ruled that, pursuant to
the prior public use doctrine, evidence of the type Intermodal
sought to present would only be relevant if the property were
already being used to serve a public purpose. Because
Intermodal could not meet that test, the ALJ barred it from
offering any evidence relating to the property’s potential use
as a parking facility.
Intermodal Props., LLC, 424 N.J. Super. 106, 115, 124-128 (App.
Div. 2012). Because the railroad did not file a cross-petition
challenging this aspect of the Appellate Division’s decision,
the issue is not before us.
8
Intermodal’s second argument was based on the statutory
authorization that only permitted a taking “as exigencies of
business may demand[.]” N.J.S.A. 48:12-35.1. Specifically,
Intermodal asserted that the statutory language required the
railroad to demonstrate that there was an emergency before it
could exercise the power to condemn. The ALJ rejected that
interpretation, concluding that the statute did not limit a
taking to emergencies, and reasoning that the phrase was used
instead to permit the railroad to condemn property as the needs
of its business reasonably demanded.
After making those preliminary legal determinations, the
ALJ conducted numerous hearings, starting in November 2007, but
held on non-sequential days. During the delays between the
hearings, Intermodal successfully petitioned the New Jersey
Meadowlands Commission (Meadowlands Commission) to have its
property rezoned from the Intermodal B zone to the
Transportation Center zone. The effect of that zoning change
was that Intermodal’s proposed commuter parking facility for the
Secaucus Junction station would be a permitted use.2
Following the completion of the hearings and consideration
of the testimony and evidence presented by the parties, the ALJ
issued a comprehensive written decision on December 11, 2009.
2
Norfolk Southern appealed the decision of the Meadowlands
Commission changing the zone, but the decision was affirmed by
the Appellate Division in an unpublished opinion.
9
As it relates to the issues on appeal, that decision separately
analyzed whether the taking of the land by the railroad was “not
incompatible with the public interest” and whether the railroad
was taking Intermodal’s property because of the “exigencies of
business[.]” In summary, the ALJ answered both questions in
favor of Norfolk Southern.
First, in determining whether the taking was “not
incompatible with the public interest,” the ALJ relied heavily
on the testimony of Susan Gruel, a licensed planner who
testified on the railroad’s behalf. Gruel testified that the
location of Intermodal’s property, which is near the freight
facility and has direct access to the New Jersey Turnpike, made
it particularly suitable to promote intermodal access. She
opined that the taking for the expansion of Croxton is
compatible with the objectives of the Meadowlands Master Plan,
the Hudson County Master Plan, and other regional economic
growth plans.
Gruel also testified that the taking would further the
goals of other local, regional, and state-wide plans, including
the Hudson County Strategic Revitalization Plan, which sought to
upgrade intermodal systems and to find alternatives to truck
traffic; the New Jersey State Development and Redevelopment
Plan, which was designed to promote economic development,
develop transportation alternatives, and protect the
10
environment; and the Regional Transportation Plan-Access and
Mobility 2003 for North Jersey, which also noted the need to
increase rail facilities and reduce reliance on trucks.
In addition, Gruel testified that the condemnation would
advance the goals set by the NJDOT. Specifically, she found
support in two NJDOT documents. First, she noted that a study
referred to as Portway, which was intended to coordinate
infrastructure projects to improve transportation access between
Newark and Elizabeth, projected a significant increase in the
need to move goods and identified a corollary need to enhance
rail facilities as a means to minimize environmental impacts.
Second, she observed that in the Update Report of the New Jersey
State Rail Planning Process, NJDOT recommended the development
of rail services as a way to save energy and reduce highway
congestion.
During the hearings before the ALJ, Intermodal attempted to
question Gruel about whether the rezoning of its property
demonstrated that the Meadowlands Commission viewed a parking
facility as a better planning option for the property than the
one proposed by the railroad. The ALJ precluded that line of
questioning because Intermodal had not presented any evidence
that the State or any other public entity was willing to enter
into a contract with Intermodal to provide public parking for
Secaucus Junction. Therefore, the ALJ deemed Intermodal’s line
11
of questioning to be irrelevant because Intermodal could not
claim the protection of the prior public use doctrine.
Ultimately, in deciding whether Norfolk Southern had
demonstrated that the taking was “not incompatible with the
public interest[,]” N.J.S.A. 48:3-17.7, the ALJ concluded that
the condemnation of Intermodal’s property would advance the
public interest in several ways. The ALJ found support in the
plans and the studies cited by Gruel as well as in the other
evidence that the railroad had presented. In particular, she
found that the taking would further the realization of the
Crescent Corridor project which, in turn, would advance the
public interest by alleviating congestion on the highways.
Moreover, the ALJ recognized that the taking would further the
goal of reducing dwell time. In this regard, she found that
dwell time was a significant consideration, observing that in
January 2007, Norfolk Southern had upgraded the system for
trucks entering its yard from the access road, installing an
automated gate and adding lanes, in an effort to reduce dwell
time. Finally, the ALJ credited testimony that the expansion
also would increase railroad efficiency and decrease pollution
by lessening the time trucks were on the road. In short, the
ALJ concluded that the condemnation was “clearly in the public
interest.”
12
Second, the ALJ considered the arguments concerning whether
the condemnation was justified by the exigencies of the
railroad’s business. See N.J.S.A. 48:12-35.1. In analyzing
whether the railroad had met that statutory test, the ALJ
reiterated her pre-hearing order setting forth her
understanding, in accordance with a dictionary definition, that
the term “exigency” did not mean emergency but, instead, meant
“the need, demand or requirement intrinsic to a circumstance or
condition.” Even so, the ALJ commented that “something more is
required beside mere convenience for the railroad” in order to
justify Norfolk Southern’s taking of the Intermodal property.
The ALJ then determined that, based on the proofs presented
during the hearings, Norfolk Southern had satisfied this
interpretation of the statutory requirement. She first relied
on studies and testimony that projected rapid growth in
intermodal business over the next ten to thirty years. She
included in her analysis governmental and independent studies
that advocated for growth in intermodal traffic as a way to
alleviate roadway congestion and address environmental concerns.
As part of the consideration of these studies, the ALJ
recognized that the recent general economic downturn had reduced
intermodal traffic and that future levels of intermodal traffic
could not be precisely predicted. Nonetheless, the ALJ rejected
two opinions offered by Intermodal’s expert directed to whether
13
the railroad had met the statutory requirement that the taking
be undertaken because of the exigencies of business. Those
opinions were that the traffic expansion projected by the
independent studies was flawed and that if intermodal traffic
were to increase, that additional traffic would not be directed
to Croxton.
The ALJ rejected both opinions, explaining that
Intermodal’s expert had offered no supporting evidence to
substantiate either of those views. On the contrary, the ALJ
observed that, in transportation planning, it is not unusual to
project fifteen to thirty years into the future. In evaluating
Norfolk Southern’s projections, the ALJ found that the evidence
supported the railroad’s contention that intermodal traffic
would expand to the point where the land it sought to acquire
would be needed at Croxton within the next ten years.
In addition, the ALJ found that the Crescent Corridor
project would add to those growth projections, thus requiring an
expansion of Croxton to facilitate the demands created by that
project. As part of her consideration of that evidence, the ALJ
described the enormous geographic and financial scope of the
Crescent Corridor project. Moreover, she considered, and
rejected, two challenges that Intermodal raised to the evidence
concerning the Crescent Corridor.
14
First, the ALJ recognized that Intermodal contended that
there was no assurance that the project would actually be built
as envisioned. After acknowledging that the ultimate success of
the Crescent Corridor project is an open question, however, the
ALJ found that Norfolk Southern was committed to the project and
that its goals were sound.
Similarly, the ALJ considered Intermodal’s assertion that,
if built, the Crescent Corridor project should not reach
Croxton, but instead should terminate in Middlesex County where
there is an abundance of available warehouse space. The ALJ
rejected that argument because Intermodal had not investigated
whether the railroad’s customers would prefer that their freight
be off-loaded in Middlesex County or whether that plan might
cause an increase in truck traffic in New Jersey. Balancing all
of these considerations, the ALJ concluded that Norfolk Southern
would require the Intermodal property for the success of the
Crescent Corridor project and that the railroad should not be
expected to wait until that “project is up and running to begin
condemnation proceedings.”
In deciding whether the railroad had demonstrated that the
taking was justified by the exigencies of its business, the ALJ
found that Norfolk Southern had presented sufficient evidence
that intermodal traffic will increase and that the Crescent
15
Corridor project, in particular, presented “sound economic and
environmental reasons” to move forward with the condemnation.
In summary, therefore, the ALJ concluded that Norfolk
Southern had demonstrated by a preponderance of the evidence
that its taking of Intermodal’s property satisfied both the
statutory command that it be “not incompatible with the public
interest[,]” N.J.S.A. 48:3-17.7, and that it be demanded by the
exigencies of the railroad’s business, see N.J.S.A. 48:12-35.1.
B.
Because the NJDOT Commissioner did not modify or reject the
ALJ’s decision, it became a final decision by operation of law.
See N.J.S.A. 52:14B-10(c). Intermodal then filed an appeal with
the Appellate Division. R. 2:2-3(a)(2). In a published
opinion, the Appellate Division affirmed the ALJ’s findings of
fact and conclusions of law respecting the two issues in dispute
before us, Norfolk S. Ry. Co. v. Intermodal Props., LLC, 424
N.J. Super. 106, 129 (App. Div. 2012), and remanded the matter
for proceedings not germane to our analysis, id. at 124-28.
First, in determining that the ALJ correctly concluded that
the taking was not incompatible with the public interest, the
Appellate Division pointed to much of the evidence that the ALJ
had found persuasive. In particular, the appellate panel looked
to the evidence supporting expansion of rail and intermodal
facilities found in the Meadowlands Master Plan and the Hudson
16
County Master Plan, as well as the projections for continued
growth found in the New Jersey Turnpike Authority’s Regional
Transportation Plan and NJDOT’s Portway study. Id. at 116-17.
The appellate court also noted, quoting the ALJ, that
expanding Croxton would be beneficial because it would reduce
dwell time, thus “‘lessen[ing] the amount of pollutants that
[trucks] emit into the air.’” Id. at 117. The court found
further support in the ALJ’s findings that the Crescent Corridor
project, which is consistent with the Meadowlands Master Plan,
would require expansion of Croxton, again helping to alleviate
“‘traffic congestion and air emissions.’” Id. at 117-18.
Taking those facts together with the “well established
understanding that railroads serve a public purpose[,]” the
Appellate Division concluded that permitting the railroad to
exercise the power of eminent domain was not incompatible with
the public interest. Id. at 118.
As part of its analysis, the appellate panel concurred with
the ALJ’s refusal to permit Intermodal “to present evidence
showing that the use of [its] property as a commuter parking lot
would be of greater benefit to the public than the use of the
property for intermodal freight operations.” Ibid. Both
because, at the time the railroad sought to take the property,
it was not zoned for use as a parking facility, and because the
subsequent rezoning of the property provided “no evidence
17
indicating that any State or local entity was willing to enter
into an agreement with Intermodal to develop the property as a
commuter parking lot[,]” id. at 118-19, the Appellate Division
agreed that Intermodal could not invoke the prior public use
doctrine. Not only was the property not being used for a public
purpose at the time Norfolk Southern filed its condemnation
petition, but, as the appellate court commented, even after the
zoning change, the “development of the property as a commuter
parking lot was speculative, at best.” Id. at 119.
Second, the Appellate Division addressed the statutory
provision that permits railroads to condemn property as the
“exigencies of business may demand.” Id. at 120. Rejecting
Intermodal’s contention that the language of the statute
requires an urgent or emergency situation, the court instead
agreed with the ALJ’s interpretation of “exigency.” Ibid. In
doing so, the appellate court adopted the dictionary definition
used by the ALJ, through which the phrase is understood to mean
“‘the need, demand, or requirement intrinsic to a circumstance,
[or] condition’ such as ‘the exigencies of city life[.]’” Ibid.(quoting Random House Webster’s Unabridged Dictionary (2d ed.
2006)).
Applying standard tools of statutory construction, the
panel explained that it was “convinced that the Legislature did
not intend to limit the exercise of the condemnation power in
18
N.J.S.A. 48:12-35.1 to emergency situations, [but that] a
railroad may take private property by the exercise of the power
of eminent domain as the needs of its business may reasonably
demand.” Id. at 120-21. That conclusion was based in large
measure on the appellate court’s recognition that the time
involved in effectuating the condemnation process and in
complying with the other requirements embodied in the statute is
lengthy, implying that demonstrating an emergency need was not
part of the Legislature’s intent. Id. at 121. Rather, the
railroad’s decision to condemn property is “more often than not
the result of long-term planning[,]” which, the panel reasoned,
indicates the Legislature did not intend to limit takings to
emergency situations. Ibid.In addition to agreeing with the ALJ’s analysis of the
statutory language, the appellate court found sufficient
credible evidence in the record to support the ALJ’s finding
that the railroad’s foreseeable future needs, based on its
growth and expansion plans, were “reasonable needs of . . .
business demand[ing] the acquisition of Intermodal’s property.”
Id. at 122.
Intermodal filed a petition for certification, which we
granted. 210 N.J. 261. We thereafter granted leave to the
American Short Line & Regional Railroad Association, the
Association of American Railroads, Consolidated Rail Corp., CSX
19
Transportation, Inc., and the New Jersey Short Line Railroad
Association to participate in the appeal as amici curiae.3
II.
The parties essentially reiterate the arguments that they
raised before the ALJ and the Appellate Division.
Intermodal asserts that the ALJ erred in precluding it from
offering evidence that its plan to build a parking facility for
the nearby commuter rail station was more compatible with the
public interest than the use to which the railroad planned to
put its property. As part of that argument, Intermodal contends
that both the ALJ and the Appellate Division erred in their
analysis of the prior public use doctrine. That erroneous
analysis, Intermodal asserts, amounted to an interpretation of
the governing statute that effectively authorizes the railroad
to take private property regardless of whether the owner’s
alternative purpose might create a greater potential benefit to
the public. Pointing to its successful effort to have the
Meadowlands Commission rezone its property for use as a parking
3
The NJDOT Commissioner filed a letter with this Court
expressing opposition to Intermodal’s petition for
certification. Following our grant of that petition, the NJDOT
Commissioner filed a statement in lieu of brief. See R. 2:6-
4(c). In that statement, the Commissioner expressed the view
that NJDOT was not required to participate, that the parties had
adequately briefed the issues, and that NJDOT had no vested
interest in the outcome. Notwithstanding that position, the
Commissioner offered the opinion that the decision of the ALJ
should be affirmed, as it was neither arbitrary nor capricious.
20
facility, Intermodal asserts that it was deprived of due process
when the ALJ prevented it from cross-examining the railroad’s
planner on its proposed competing use.
Intermodal also takes issue with the interpretation of the
statute relating to the exigencies of the railroad’s business.
It argues that the statute contemplates a present and
identifiable need for the property and that the reading of the
statute adopted by the ALJ and affirmed by the Appellate
Division is too deferential to the railroad to be consistent
with the Legislature’s intent. Recognizing that long-term
planning is needed for railroad development, Intermodal asks
this Court to interpret the statutory language to require
railroads to “show a cognizable and definite need or requirement
for the taking.” In short, Intermodal urges us to conclude that
the Legislature chose the word “exigency” with the purpose of
implying a sort of immediacy or urgency, as would be consistent
with the ordinary meaning of that term, leading to the
conclusion that the railroad’s general concern for its long-term
needs falls short of what the statute demands.
Norfolk Southern urges this Court to affirm the judgment of
the Appellate Division in all respects. First, it asserts that
Intermodal’s effort to offer the potential use of the rezoned
property is based on a misreading of the precedents permitting
evaluation of another public use. As the railroad understands
21
the law, only when property was being put to a public purpose at
the time of the taking does the alternative use of the property
become relevant to the attempt to condemn. Because Intermodal’s
property was not being put to a public purpose at the time when
the railroad sought to take it, and because any future public
purpose would be speculative, Norfolk Southern argues that the
ALJ correctly precluded Intermodal from offering evidence
relating to the plan to turn the property into a parking
facility for the commuter train station.
Second, the railroad asserts that the ALJ and the Appellate
Division correctly understood and applied the statutory phrase
“exigencies of business.” Arguing that the Legislature must
have recognized the need for long-term planning relating to
railroad expansion, Norfolk Southern contends that “exigency”
cannot mean “emergency,” but instead must be related to
projections of future growth and needs.
Amici Curiae, a group of freight railroad companies
operating in New Jersey and related trade organizations, offer
this Court historical background about railroads and the
condemnation power granted to them. They urge us to consider
the vital importance of railroads, particularly as a means to
relieve congestion on our highways, reduce engine emissions,
conserve energy, and improve safety of the traveling public.
They explain that the process involved in expanding railroads is
22
lengthy and complex, and they assert that the interpretation of
the statutory phrase “exigencies of business” must be consistent
with these practical realities. In summary, amici urge this
Court to affirm the judgment of the Appellate Division in its
entirety.
III.
This appeal calls upon us to consider two statutory
provisions that relate to the power that the Legislature has
vested in public utilities and, more particularly, in railroads,
to acquire property through exercising the power of eminent
domain. First, we address the limitation placed on the exercise
of the power to condemn by any public utility through the
requirement that the taking be “not incompatible with the public
interest.” N.J.S.A. 48:17-7. Second, we consider the
limitation imposed by the requirement that, when the
condemnation power is exercised by a railroad, it only be
permitted to take property to the extent that the “exigencies of
business may demand[.]” N.J.S.A. 48:12-35.1.
A.
We need not recite the rich body of principles based upon
our constitution and statutory law that inform every
consideration of the exercise of the power of eminent domain,
much of which is familiar and well-established. Instead, we
focus only on the two specific statutory phrases before the
23
Court. As a result, the debate before us is indeed a narrow one
because the parties do not disagree that the railroad’s taking
is for a proposed public use. Instead, they argue only about
the evidence relevant to the requirement that the taking be not
incompatible with the public interest and the meaning of the
phrase “exigencies of business.”
Turning first to the question about the evaluation of
whether the proposed use is not incompatible with the public
interest, the focus of the parties is solely on whether
Intermodal should have been permitted to offer evidence
concerning its different proposal for the use of its property.
We have addressed previously how to evaluate whether a
proposed use is a public use. See Twp. of W. Orange v. 769
Assocs., LLC, 172 N.J. 564, 573 (2002). That is, we have
concluded that, “‘public use’ is synonymous with ‘public
benefit,’ ‘public advantage,’ or ‘public utility.’” Ibid.(quoting State Highway Comm’r v. Totowa Lumber & Supply Co., 96
N.J. Super. 115, 119 (App. Div. 1967)). In particular, we
described a public use in terms of one “that tends to enlarge
resources, increase the industrial energies, and . . .
manifestly contributes to the general welfare and the prosperity
of the whole community.” Ibid. (internal quotation marks
omitted).
24
Moreover, we have recognized that railroads and related
terminal facilities meet the requirements for being a public
use. See Twp. of Weehawkin v. Erie R.R. Co., 20 N.J. 572, 581-
82 (1956). That is, railroads are “bound to accommodate all
freight and passenger traffic which seek its service[,]” and
“[r]eceiving and terminal facilities are necessary adjuncts to
the service rendered.” Id. at 581. “The transportation of
freight constitutes a public franchise, . . . and [a] proposed
[terminal] facility is a necessary implement[.]” Id. at 581(internal citation omitted). “The public use thus manifested is
not diluted because the facility may only be enjoyed by a
portion of the public.” Id. at 582. Railroads are “bound to
extend the[ir] service to all who have reasonable need for the
proposed facility depending upon its capacity for transshipment
of freight.” Ibid. Therefore, railroads “should not be so
strictly construed as to disallow growth and progress to meet
the competitive forces of the time.” Ibid.The question before us is whether a property owner can
defeat a railroad’s exercise of eminent domain by introducing
proofs that the owner’s proposed use of its property would
better serve the public interest than would the railroad’s
proposed use thereof. That assertion requires us to consider
the subsidiary question raised by the parties concerning the
25
evaluation by the ALJ and the Appellate Division of the prior
public use doctrine.
The prior public use doctrine has a specific meaning and
application. It arose in the context of disputes over land
between two entities, each of which had condemnation power. Id.
at 579. The circumstances we encountered in Weehawken aptly
illustrate the concern that gave rise to the doctrine. There, a
railroad owned two parcels and the municipality desired to
condemn one for use as a baseball field and other recreational
purposes. Id. at 578. In that context, this Court recognized
that each litigant had the authority to condemn and each
asserted that it intended to use the property for a public
purpose. We also recognized that in that unique circumstance,
in the absence of either a rule of law or special legislation
designed to end the dispute, the two entities could engage in an
endless round of condemnation and re-condemnation, with each
seeking to acquire the property by asserting its power of
eminent domain. Id. at 579.
In order to create certainty, this Court crafted the prior
public use doctrine, which operates to “den[y] exercise of the
power of condemnation where the proposed use will destroy an
existing public use or prevent a proposed public use unless the
authority to do so has been expressly given by the Legislature
or must necessarily be implied.” Ibid. The application of the
26
doctrine, therefore, is both specific and narrow. It does not
automatically apply merely because property is already being
used for a public purpose. See Texas E. Transmission Corp. v.
Wildlife Preserves, Inc., 48 N.J. 261, 268-69 (1966) (denying
“public-spirited” conservation group protection of prior public
use doctrine for private land voluntarily devoted to use as
wildlife preserve because conservation group lacked condemnation
authority).
That is, a property owner that devotes its property to a
worthy public purpose, unless it also has the power to condemn,
cannot avail itself of the protections of the prior public use
doctrine. Id. at 267-68. Moreover, as we explained, if the
prior public use doctrine does not apply, “no comparative
evaluation of two public uses, one existing and one proposed,
need be undertaken in order to determine which should prevail as
the paramount use.” Id. at 273. Therefore, an owner cannot
look to the prior public use doctrine to defend against a
condemnation action absent a pre-existing, public use coupled
with the power of eminent domain, nor may it suggest that there
is a potential or future proposed use that might be more
beneficial than the proposed use put forth by the condemnor.
With these precedents to guide us, our evaluation of
Intermodal’s argument is clear. First, Intermodal’s use of the
property at the time that the railroad sought to exercise the
27
power of eminent domain was not a public use. The record
reflects that, at the time, the Intermodal property was being
used by private entities for truck parking. Moreover, at the
time, the property could not have been devoted to the public use
that Intermodal has identified because it would have been
inconsistent with the zoning ordinance. Nor is it relevant that
Intermodal succeeded in rezoning the property as part of its
effort to potentially achieve its stated public purpose of
creating a parking facility for the nearby commuter train
station. Although achieving that purpose might have served the
public interest in some sense, Intermodal has not suggested that
it would be anything but a privately owned and profit-driven
venture. Intermodal cannot claim the protection of the prior
public use doctrine because the use to which it points is
neither a prior use nor a public one, but is instead a
speculative, future plan for a profit-making venture.
More fundamentally, the prior public use doctrine would
only apply if the property owner itself had the power of eminent
domain, as if, for example, the municipality had already taken
Intermodal’s property for a parking facility. Because
Intermodal lacks the power to condemn, the prior public use
doctrine can have no application to this dispute over the
railroad’s exercise of its power of eminent domain.
28
Finally, the language of the statute speaks only to the
requirement that the taking be “not incompatible with the public
interest.” N.J.S.A. 48:3-17.7. That statutory language demands
that the focus be on the proposed use identified by the
condemnor; as we have held, in the absence of a previously
existing public use, it does not permit a comparative analysis
of a competing public purpose that an owner proposes. See Texas
E. Transmission Corp., supra, 48 N.J. at 273. That is, the
statute requires evaluation of whether the purpose proposed by
the condemning authority is incompatible with the public
interest, not whether there is some alternative proposal that
might be more in the public interest.
In the end, Intermodal’s interpretation of the statute
asked the ALJ to engage in the latter analysis, seeking
permission to offer a plan that Intermodal thought would be a
better or more worthy purpose. Whether, in fact, the plan
proposed by Intermodal would have been a better one than that
which the railroad proposed, however, is of no moment in light
of the clear language that the Legislature chose when creating
the boundaries within which the railroad may exercise the power
of eminent domain. We, therefore, detect no error in the
analysis of the ALJ or in the judgment of the Appellate Division
concluding that the railroad’s proposed use of the property was
29
“not incompatible with the public interest” as defined by the
statute.
B.
The second argument raised by the parties rests as well on
a debate about statutory interpretation. Because in this aspect
of the appeal we are called upon to interpret the meaning of a
word or phrase chosen by the Legislature, we recite briefly the
familiar concepts of statutory construction that guide us.
Courts ordinarily “‘give substantial deference to the
interpretation an agency gives to a statute that the agency is
charged with enforcing.’” R & R Mktg., LLC v. Brown-Forman
Corp., 158 N.J. 170, 175 (1999) (quoting Smith v. Dir., Div. of
Taxation, 108 N.J. 19, 25 (1987)); accord Richardson v. Bd. of
Trs., Police & Firemens’ Ret. Sys., 192 N.J. 189, 196 (2007).
However, we are “in no way bound by the agency’s interpretation
of a statute or its determination of a strictly legal issue.”
In re Taylor, 158 N.J. 644, 658 (1999) (quoting Mayflower Sec.
Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
As we have long recognized, in general, “[i]n any matter
requiring our consideration of a statute, our essential task is
to understand and give effect to the intent of the Legislature.”
Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008); see
also Roberts v. State, Div. of State Police, 191 N.J. 516, 521
(2007) (construing meaning of police disciplinary statute
30
through use of extrinsic aids); Bunk v. Port Auth. of N.Y. &
N.J., 144 N.J. 176, 194 (1996) (construing intent of
Legislature’s amendment to Worker’s Compensation Act).
In engaging in that important task, “we look first to the
plain language of the statute, seeking further guidance only to
the extent that the Legislature’s intent cannot be derived from
the words that it has chosen.” Pizzullo, supra, 196 N.J. at
264; accord Roberts, supra, 191 N.J. at 521. If “the language
is not clear and unambiguous on its face, we look to other
interpretive aids to assist us in our understanding of the
Legislature’s will.” Pizzullo, supra, 196 N.J. at 264; see,
e.g., Roberts, supra, 191 N.J. at 521 (reviewing extrinsic aids
including Governor’s conditional veto message and bill sponsor’s
statements); Panzino v. Cont’l Can Co., 71 N.J. 298, 301-03
(1976) (relying on bill sponsor’s statement for guidance).
With these precedents as our guide, we turn to the dispute
between the parties concerning the meaning of the statute
limiting the railroad’s power to condemn to circumstances “as
exigencies of business may demand[.]” N.J.S.A. 48:12-35.1.
In striving to determine what the Legislature intended when
it chose the word “exigencies[,]” the ALJ applied a dictionary
definition. Using that approach, the ALJ concluded that the
term meant “need, demand or requirement to a circumstance or
condition.” In affirming that conclusion, the Appellate
31
Division expanded on the analysis, considering the dictionary
definition and the statute as a whole. As the panel therefore
explained, the word “exigency” did not connote an emergency or
an urgent need, but instead, when viewed in light of the entire
statute, was meant to convey the reasonable demands of the
business of a railroad. Norfolk Southern, supra, 424 N.J.
Super. at 120-21 (citing Hubner v. Spring Valley Equestrian
Ctr., 203 N.J. 184, 195 (2010)).
Our evaluation proceeds on a somewhat different course
because modern day definitions are inconsistent and lead to
contrary conclusions. Although the ALJ and the appellate court
used a dictionary that gave a definition that apparently fits
the overall statutory intent, it is not the only dictionary
definition for the term we are called upon to interpret. Other
dictionaries define exigency in terms of “a state of affairs
that makes urgent demands[,]” Webster’s Ninth New Collegiate
Dictionary 435 (1985), or as a “state of urgency; a situation
requiring immediate action[,]” Black’s Law Dictionary 655 (9th
ed. 2009).
Those definitions are perhaps a reflection of the use of
the term as it is meant in the context of rights protected by
the Fourth Amendment, see U.S. Const. amend. IV, and by our
parallel constitutional provision, see N.J. Const. art. I, ¶ 7.
In that context, the word, which is ordinarily used in the
32
phrase “exigent circumstances,” always connotes a sense of
urgency or emergency in which action is needed. See State v.
Johnson, 193 N.J. 528, 552-53 (2008) (observing that term
“cannot be precisely defined . . . [but involves circumstances]
when inaction due to the time needed to obtain a warrant will
create a substantial likelihood that the police or members of
the public will be exposed to physical danger or that evidence
will be destroyed or removed from the scene”); see also Black’s
Law Dictionary 277 (9th ed. 2009) (defining exigent
circumstances as “situation that demands unusual or immediate
action and that may allow people to circumvent usual
procedures”). Although that understanding of the term, having
found its way into common parlance, undoubtedly gave some
support for Intermodal’s assertion in this dispute, it is not a
useful avenue for interpretation of this statute.
Rather, as this appeal illustrates, modern understandings
of words or phrases may not be appropriate guides in statutory
interpretation, particularly if a statute was crafted decades in
the past, or, as in this case, more than a century ago. Nor are
they appropriate if a statute uses a term of art, in which
circumstance we are bound to construe the term “in accordance
with those meanings.” In re Lead Paint Litig., 191 N.J. 405,
430 (2007); see also N.J.S.A. 1:1-1 (declaring that “words . . .
having a special or accepted meaning in the law, shall be
33
construed in accordance with such . . . meaning”); accord
Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009).
In our quest to understand the meaning of the phrase used
in this statute, therefore, it is appropriate for us to look to
the language of the statute as well as to decisions published
during the timeframe when the phrase was chosen by the
Legislature in order to assist us in interpreting the phrase in
accordance with its intended meaning. In particular, because
the phrase connects the word “exigencies” with the word
“business,” it is appropriate to look to published decisions
that use both of those words so that we may understand the
meaning in context and, therefore, glean what the Legislature
understood the phrase to mean when choosing it.
First, the phrase “exigencies of business[,]” which is now
found in N.J.S.A. 48:12-35.1, is not one of recent vintage, but
has deep roots in predecessor statutes governing the formation
of railroads and the creation of their routes. Beginning with
the 1873 Act to Authorize the Formation of Railroad Corporations
and Regulate Same (1873 Act), L. 1873, c. 413, §§ 1 to 39, the
Legislature created a system to govern the way in which
railroads could be formed and the manner in which they were to
be operated. That original enactment, which preceded the
passage of the Eminent Domain Act, L. 1900, c. 53, § 1, not only
granted to directors of railroads the power to take land, see L.
34
1873, c. 413, § 1, but also included sections devoted to the
technicalities of the way in which the power of condemnation
could be exercised and how just compensation would be
established, see id. §§ 11-13.
The 1873 Act permitted takings of land for the purpose of
laying tracks, creating a right of way, siting and building
depots, and the like. In describing the scope of authority to
take land, the Legislature used various kinds of limiting
language. That is, takings for the right of way were limited to
100 feet in width, id. § 11; takings of additional land to
redirect a road or turnpike so as to ease ascent and descent of
the tracks was permitted “as may be deemed requisite by the
directors[,]” id. § 21; and, in general, appurtenant buildings
were only permitted as deemed “expedient” for the safety of
property and “for necessary uses appertaining to [the
railroad’s] business[,]” id. § 17.
The phrase “exigencies of business[,]” as it relates to
railroads, first appeared in a separate piece of legislation
enacted in 1877. See An Act Concerning Railroad Corporations
(1877 Act), L. 1877, c. 31, § 1. The 1877 Act, while not
amending the more general railroad statute of 1873, permitted
railroads to exercise the power of eminent domain “to all such
lands adjoining their road as constructed on their right of way
as located, as, in the judgment of the directors of such
35
company, the exigencies of business may demand for the erection
of freight and passenger depots and all other legitimate
purposes of said company[.]” Ibid.
Apparently proceeding in parallel fashion, the more general
1873 Act was amended several times, in ways that are not germane
to our analysis. In 1887, however, the Legislature amended the
1873 Act to incorporate the language that had been used in the
1877 Act to describe the exercise of the power of eminent
domain. L. 1877, c. 31, § 1. As a result, the 1887 amendment
imported the phrase “the exigencies of business” into the more
general railroad statute’s pre-existing authorization of eminent
domain. After the passage of the Eminent Domain Act in 1900, L.
1900, c. 53, §§ 1 to 19, the statutes governing railroads
underwent a general revision. See 1903 Act Concerning Railroads
(1903 Act), L. 1903, c. 257, §§ 1 to 89. In part, that new
statute omitted the earlier-included sections on the technical
manner in which the power of eminent domain could be exercised,
in favor of incorporating the procedures found in the Eminent
Domain Act by reference. See id. § 13. The 1903 Act,
therefore, included the general grant to railroads of the power
of eminent domain, along with the reference to the scope of that
authority being limited “as in the judgment of the [railroad’s]
directors . . . the exigencies of business may demand.” Ibid.
36
The 1903 Act was often referred to at the time as the
General Railroad law. Section 13 of the 1903 Act, relating to
the condemnation power, was amended several times thereafter,
before being repealed in 1962, see L. 1962, c. 198, § 198, and
replaced with the current statute, L. 1962, c. 198, § 60
(codified at N.J.S.A. 48:12-35.1). It was in 1962, in the
context of classifying railroads as public utilities, see L.
1962, c. 198, § 48, that the Legislature deleted the earlier
statutory reference to the “judgment of the directors,” leaving
only the long-standing phrase, “exigencies of business may
demand” as the standard.
Throughout all of those statutory changes, since 1877, the
phrase regarding the exercise of the power of eminent domain by
the railroad that refers to “the exigencies of business” has not
been altered. The phrase, therefore, is best understood by
seeking guidance as to the meaning that was ascribed to it both
in decisions construing the 1903 Act, and in decisions that
utilized it in analogous contexts in the late 1800’s when the
Legislature included it in the laws governing railroads.
There are published decisions issued by a variety of courts
that touch on the 1903 Act and that include references to the
phrase “exigencies of business.” For example, the 1903 Act,
referred to by the court as the General Railroad Act, was the
focus of a dispute in chancery about the authority of railroads
37
to condemn. The Vice Chancellor referred to the phrase
“exigencies of business” when quoting language from the statute,
but decided the matter without construing the meaning of those
words. See Benton & Holden, Inc. v. Cent. R.R. Co. of N.J., 122
N.J. Eq. 309, 313 (Ch. 1937) (discussing General Railroad Act, 3
Comp. Stat., p. 4224, § 13), aff’d o.b., 123 N.J. Eq. 163 (E. &
A. 1938). Instead, the Chancellor considered whether the
railroad’s action, challenged as a taking, was permitted because
it was done pursuant to a direction from the Board of Public
Utilities (BPU). Ibid. Because the Legislature had amended the
statute, after the railroad acted, specifically to create the
authorization for a taking pursuant to a BPU directive, the
Chancellor concluded that the railroad’s power to condemn based
on such an order did not exist previously. Ibid.Although the Chancellor therefore did not construe the
phrase concerning exigencies, there are other published
decisions that concern either the 1903 Act in general or
railroads in particular that are of assistance to this Court.
For example, in considering the claim of a plaintiff injured in
a fall from a train platform, the Court of Errors and Appeals
commented on the extent of the railroad’s duty, noting that
“[t]here was no proof that the platform was not constructed in
the ordinary way, nor that the space was greater than the
exigencies of business required.” Dotson v. Erie R.R. Co., 68
38
N.J.L. 679, 685 (E. & A. 1903). The Court reached that
conclusion by considering such factors as whether the dimensions
of the platform were sufficient to accommodate passengers
boarding and disembarking from trains, whether the platform was
close enough to the rails to permit safe entry and exit, and
whether the platform provided sufficient space to allow passage
when considering the fact that trains ordinarily have parts that
project to the sides and may intrude on the platform. Id. at
684-85. Read in the context of the Court’s evaluation of the
duty owed to the patron of the railroad, the phrase “exigencies
of business” meant general needs of the business operation.
Ibid.; accord Feil v. W. Jersey & Seashore R.R. Co., 77 N.J.L.
502, 503-04 (E. & A. 1909) (affirming dismissal of law suit by
passenger injured while walking along platform who unexpectedly
stepped into properly designed, well-maintained depression in
platform, referred to as a truckway, used by railroad to
transfer luggage between cars); see also Cullen v. W. Jersey &
Seashore R.R. Co., 85 N.J.L. 708, 710-11 (E. & A. 1914)
(distinguishing Feil based on plaintiff’s allegation that
truckway design was negligent).
In an analogous context, the Supreme Court used the phrase
“exigencies of business” in addressing a dispute about whether
property owned by a railroad was taxable. See State v. Haight,
35 N.J.L. 40, 46 (Sup. Ct. 1870). There, the court, in applying
39
the doctrine that taxation depended on actual use, relied on the
phrase to comment on the difference between actual and potential
use. The court explained that “[l]ands which a company has
purchased and is holding merely with a view to an appropriation
to business in the future, if the exigencies of business should
require them, may be said to be held as a matter of convenience
to the company, and not to be necessary to the prosecution of
the objects of its incorporation.” Ibid. As used in that
context, the phrase again was used to mean needs of the day or
general needs of the business.
There are, as well, a number of decisions reached in
disputes that have arisen in other contexts to which we may turn
to shed light on the historical understanding of the phrase
“exigencies of business.” The Court of Errors and Appeals, in
considering whether possessory interest in bonds should be
tested in accordance with holder in due course principles, used
the phrase as if it meant something more akin to convenience.
See Morris Canal & Banking Co. v. Fisher, 9 N.J. Eq. 667, 699
(E. & A. 1855). That is, after commenting that bank notes are
so construed, the court observed that “[b]y analogy to this
class of cases, the exigencies of business have from time to
time introduced other securities into the same category.” Ibid.Likewise, the Court of Errors and Appeals used the phrase
to describe a general course of business in the context of
40
whether a note was properly dishonored by a bank. See Fifth
Ward Sav. Bank of Jersey City v. First Nat’l Bank of Jersey
City, 48 N.J.L. 513, 522 (E. & A. 1886) (observing that “[c]all
loans on notes payable on demand . . . are a common method with
banks of loaning unemployed funds, and it is usual to raise
money, when required by the exigencies of business, on such
notes and collaterals, by transferring them to other banks”).
Finally, the phrase was employed by the Vice Chancellor to
distinguish between forfeitures that call for the intervention
of the courts of equity and those that do not. See N. Jersey
St. Ry. Co. v. S. Orange, 58 N.J. Eq. 83, 91-92 (Ch. 1899). In
that decision, the Vice Chancellor described the “class of cases
comprising mercantile contracts where the exigencies of business
and trade require that a party having paid a sum of money on a
particular account and agreeing to pay a further sum on a
certain day on the same account, and failing to pay such sum,
should lose what he has already paid.” Distinguishing that
class of cases, the court declined the application by a
municipality seeking to declare a forfeiture of streetcar
property. Ibid.As these decisions illustrate, when courts have been called
upon to interpret the meaning of the phrase “exigencies of
business” in the past, it has been regarded as a term of art.
As such, it has been understood to describe generally the needs
41
of business, or the ordinary course of business, rather than to
allude to an emergent, urgent, immediate, or pressing need.
Indeed, it is the influence of our modern jurisprudence in the
criminal context that has imbued the term with those notions.
We conclude, as we must, that the Legislature meant the phrase
“exigencies of business” to be understood in accordance with the
way in which it was used at the time when the language was
chosen.
Moreover, that understanding of the phrase is the most
sensible one when considering the way in which railroads
operate. Simply put, demanding that the railroad demonstrate
that there is an urgency or an immediacy that motivates its
exercise of eminent domain to acquire a tract of land, as
Intermodal suggests, would require us to close our eyes to the
reality of how railroads are developed and built. Long-term
planning is critical to rail transport, and we detect no basis
on which to conclude that the Legislature intended to demand
that railroads prove urgency, immediacy or emergency of their
need for land as a prerequisite to exercising their statutory
condemnation power.
V.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and
PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in JUSTICE HOENS’s opinion.
42
SUPREME COURT OF NEW JERSEY
NO. A-117 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
NORFOLK SOUTHERN RAILWAY
COMPANY, a Virginia
Corporation,
Petitioner-Respondent,
v.
INTERMODAL PROPERTIES, LLC,
Respondent-Appellant.
DECIDED August 6, 2013
Chief Justice Rabner PRESIDING
OPINION BY Justice Hoens
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7