Wheeler v. Borough of Cliffside Park , 97 N.J.L. 364 ( 1922 )

The opinion of the court was delivered by

Gummere, Chief Justice.

The situation disclosed by the pleadings in the present case is as follows: Some time prior to 1916, the borough of Cliffiside Park installed a sewer system within its corporate limits; and in June of that year the borough assessment commission filed its report of assessments against the property benefited by the improvement, including a plot of land then owned by the relators. In May, 1917, about a year after the assessment report was filed, the relators caused a map to be made of the property assessed as aforesaid and of other properties which they owned, and this map was submitted to and approved by the borough council. Upon it the lands included therein were laid out in building- lots and streets. Some months after its approval by the borough council the relators conveyed the fee in the various streets exhibited thereon to one Everett P. Smith, and subsequently, in 1918, petitioned the council to make an apportionment of the assessment which had been laid upon the land above referred to between that part thereof remaining in the relators and thei portion which had previously been conveyed to Smith. Acting upon this petition, but not complying with its prayer, the borough council made an apportionment of the whole assessment between the various building lots shown on the map of 1917 and belonging to the relators, hut relieved from the burden thereof the lands lying within the street lines. The question presented for determination by the demurrer to the answer is whether this municipal action can be legally justified.

We are of opinion that, by submitting their map to the borough council for its approval, the relators dedicated the streets indicated thereon to public use. But the mere dedication did not constitute them public highways. They did not become so unless and until that dedication was accepted by the municipal authorities. Whether or not the approval of the map by the borough council constituted an acceptance of the dedication we are not called upon to determine. If it did, then the land in those streets immediately became subject to the public user, and it was beyond the power of the bo-rough council to transfer so much of the burden of the assessment as rested upon that land to the lands of the relators lying outside of the street lines, and thereby increase the burden originally imposed upon those lands.

If, on the other hand, the approval of the map did not constitute an acceptance of the dedication, then the title to the land within these street lines is vested in Everett P. Smith, free from any present public user impressed thereon, and this land, resting, as¡ it do-es, in private ownership, is equally liable to- the burden imposed upon it by the assessment as is the other land upon which: it was originally laid.

We conclude, therefore, that, for the reasons above indicated, the demurrer to the answer of the borough of Cliff-side Park should be sustained; and that a peremptory writ should issue, eomtaanding the borough council to make an equitable apportionment of the assessment involved in this controversy between such part of the land upon which the assessment was originally laid as still remains in the ownership of the relators and the portion thereof that was conveyed to said Everett P. Smith, as above stated.