C. Perry Elterich and Ruth R. Elterich, His Wife v. The City of Sea Isle City, A Municipal Corporation, 477 F.2d 289, 3rd Cir. (1973)
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Scribd Government DocsC. Perry Elterich and Ruth R. Elterich, His Wife v. The City of Sea Isle City, A Municipal Corporation, 477 F.2d 289, 3rd Cir. (1973)
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Scribd Government Docs477 F.
2d 289
C. Perry ELTERICH and Ruth R. Elterich, his wife, et al.,
Appellants,
v.
The CITY OF SEA ISLE CITY, a municipal corporation, et al.
No. 71-1912.
United States Court of Appeals,
Third Circuit.
Argued Sept. 29, 1972.
Decided March 26, 1973.
Eugene T. Radcliffe, Powell, Davis, Dietz & Colsey, Mount Holly, N. J.,
for appellants.
Carl J. Gregorio, Kisselman, Deighan, Montano, King & Summers,
Camden, N. J., for appellees.
Before STALEY, VAN DUSEN and MAX ROSENN, Circuit Judges.
OPINION OF THE COURT
STALEY, Circuit Judge.
This is an appeal from the granting of the appellees' motion for summary
judgment. The appellants brought this action in the district court under 42
U.S.C. Sec. 1983 seeking to recover damages on the grounds that the appellees,
City of Sea Isle City ("City") and various city officials had unlawfully
appropriated their land and deprived them of its use1 through what the
appellants contend was an arbitrary and unlawful use of appellees' power. The
allegation of unlawful taking was based on events which took place in the
aftermath of a damaging storm. The following is an account of those events.
Sea Isle City is located on a coastal island separated from the mainland of New
Jersey by a bay. On March 6, 1962, a severe storm caused extensive damage to
most of the island, including property owned by the appellants. When the storm
subsided, martial law was declared on the island, and the process of assessing
the extent of damage began. After a period of evaluation, the City deemed it
necessary to repair a dune line near the island's coast to protect the City from
the effects of future storms.2 Land owned by the appellants, among others, was
chosen as the site for the protective barrier which was constructed by the
United States Army Corps of Engineers. At no time after the storm were the
appellants permitted to reoccupy their lands.
3
By the time this case came before the district court for a determination of the
merits of the appellants' contentions, the City had acquired the property in
question either by condemnation proceedings or by sales under the threat of
condemnation. Granting the appellees' motion for summary judgment, the
district court stated that since the rights of the appellants whose property was
condemned were adequately protected by the State of New Jersey, a ruling on
the validity of the awards would be an unwarranted interference with state court
jurisdiction. With respect to the claims of those who sold under threat of
condemnation, the court said: "[I]t is a fair assumption that they considered all
of those matters at the time that they made the deal."
On appeal, the question presented is whether New Jersey's condemnation
procedure preserved the full measure of the appellants' property rights under the
United States Constitution. There is no question that the mere exercise of
eminent domain power does not offend due process, Roberts v. City of New
York, 295 U.S. 264, 55 S.Ct. 689, 79 L.Ed. 1429 (1935); Chicago, Burlington
& Quincy Railroad Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979
(1897). Nor, as appellants' brief concedes at page 6, is there any dispute that the
City had authority under both the United States Constitution and the New
Jersey Constitution to condemn their land for public use. Appellants' claims
under Sec. 1983 relate only to the matter of compensation. On appeal, they
contend that they have not been properly compensated for being deprived of the
use of their land as a result of the City's action.
They assert that in addition to the market value of the land, they are entitled to
the value of its use for the period of time between the taking and condemnation.
They also seek to be reimbursed for taxes allegedly paid after the City took
possession. All these matters could have been urged in the state condemnation
proceedings.
New Jersey law provides, as the United States Constitution requires, that an
owner whose land is condemned must receive just compensation, U.S. Const.
Amends. V and XIV; New Jersey Const.1947, Art. I, p 20; see State of New
Jersey v. Burnett, 24 N.J. 280, 131 A.2d 765 (1957). Generally, a sum of
money equal to the market value of the land at the time the complaint is filed
constitutes just compensation. Olson v. United States, 292 U.S. 246, 54 S.Ct.
704, 78 L.Ed. 1236 (1934); State of New Jersey v. Cooper, 24 N.J. 261, 131
A.2d 756, cert. denied, 355 U.S. 829, 78 S.Ct. 41, 2 L.Ed.2d 42 (1957); see N.J.
S.A. 20:1-9 (1969). Where the taking occurs before the condemnation action
and the property decreased in value before the action is commenced, the
condemnee is entitled to the value at the taking. State of New Jersey v. Jones,
27 N.J. 257, 142 A.2d 232 (1958). Cf. Klopping v. City of Whittier, 8 Cal. 3d
39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972). New Jersey also recognizes that a
condemnee is entitled to be compensated for the value of the use of his land
where the condemnor goes into possession without full payment.
7 * * In condemnation proceedings interest is allowed where the condemnor goes
"*
into possession without full payment and the owner of the property is deprived not
only of his property but of the profits and increments from the use and for this latter
deprivation interest is allowable on equitable principles." New Jersey Highway
Authority v. Ellis, 24 N.J. 1, 130 A.2d 601, 604 (1957); State of New Jersey v.
Hankins, 63 N.J.Super. 326, 164 A.2d 615 (1960).
8
Similar adjustments are made with respect to taxes paid during the time after
the taking. Housing Authority of City of Hoboken v. Segal, 112 N.J.Super. 359,
271 A.2d 439 (1970).
The fact that the appellants were deprived of their land before the
condemnation took place does not mean their constitutional rights were denied,
since compensation is available. See Yearsley v. Ross Construction Co., 309
U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940); Hurley v. Kincaid, 285 U.S. 95, 52
S.Ct. 267, 76 L.Ed. 637 (1932); Stringer v. United States, 471 F.2d 381 (C.A.5,
1973).
10
No assertion has been made that the appellants have been denied an
opportunity to press their claims in the state court. Clearly they had an
opportunity. If the appellants were dissatisfied with the awards they received,
they had a right to appeal in state court.3 It is the clear pronouncement of the
New Jersey courts that the rights appellants assert here were guarded. The
Federal courts do not sit as courts of review over alleged errors of state courts.
Landowners Consideration Association v. Montana Power Co., 300 F.Supp. 54
(D. C.Mont.1969); see Martin v. Creasy, 360 U.S. 219, 79 S.Ct. 1034, 3
L.Ed.2d 1186 (1959). Neither were those who sold under threat of
condemnation denied any rights. Their opportunity to assert the matters alleged
here was given up at the sale they fully accepted.
11
Lastly, we note that the City of Sea Isle City is not a proper party in an action
11
under Sec. 1983. United States ex rel. Gittlemacker v. County of Philadelphia,
413 F.2d 84 (C.A.3 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24
L.Ed.2d 691 (1970). The action, therefore, should have been dismissed as to
Sea Isle City.
12
We hold that no federally protected rights of the appellants have been violated.
The State of New Jersey fully preserved all rights of the appellants in their
condemnation proceedings.
13
For the foregoing reasons, the cause will be remanded to the district court with
directions that the action against Sea Isle City be dismissed and, in all other
respects, the judgment of the district court will be affirmed.
42 U.S.C. Sec. 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress."
Following the storm, a series of ordinances were passed by the governing body
of Sea Isle City which dealt with the regulation of land use in the dune area
While the appellants concede that the laws under which the appellees acted are
constitutional, they allege that appellees' actions under such laws were carried
out in a constitutionally impermissible manner. However, damages for
whatever injury appellants suffered might have been recovered had they
pursued by appeal in the state courts their available state court condemnation
remedy. This case does not present a situation where the remedy provided
under state law was inadequate or foreclosed. Cf. McGuire v. Sadler, 337 F.2d
902 (C.A. 5, 1964)
