Tubular Service Corp. v. Commissioner of State Highway Department , 40 N.J. 331 ( 1963 )

40 N.J. 331 (1963) 191 A.2d 745

TUBULAR SERVICE CORPORATION, A NEW YORK CORPORATION, PLAINTIFF-APPELLANT,
v.
COMMISSIONER OF THE STATE HIGHWAY DEPARTMENT OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.

The Supreme Court of New Jersey.

Argued June 4, 1963. Decided June 10, 1963.

Mr. Conrad W. Krafte argued the cause for plaintiff-appellant (Mr. Sheldon M. Liebowitz, attorney).

Mr. Theodore I. Botter, First Assistant Attorney General, argued the cause for defendant-respondent (Mr. Paul G. Levy, Law Assistant, on the brief; Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).

The opinion of the court was delivered

PER CURIAM.

The judgment is affirmed substantially for the reasons expressed in the Appellate Division opinion. Tubular Service Corp. v. Com. State Highway Dept., 77 N.J. Super. 556 (App. Div. 1963). We add this qualification. On the record before us we do not feel it can be said with conviction or certainty whether the conduct of plaintiff's trucks in making the turn "necessarily violated" the Motor Vehicle Act "continuously or frequently." 77 N.J. Super., at p. 561. Such determination is not necessary to disposition of the appeal, and we agree with the basic view of the Appellate Division that it is preferable to predicate affirmance of the trial court's determination on the ground that the action of the Highway Department in constructing the center highway barrier does not amount to a compensable taking of property.

For affirmance — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.

For reversal — None.