Bozarth v. Egg Harbor City

Leaming, V. C.

The principles controlling dedication of land to public use, and the public rights flowing from such dedications, have been frequently defined by the courts of this state. The leading cases are: Methodist Church v. Hoboken, 33 N. J. Law 13; S. C., 19 N. J. Eq. 355; Hoboken Land Co. v. Hoboken, 36 N. J. Law 544; Price v. Plainfield, 40 N. J. Law 608; Bayonne v. Ford, 43 N. J. Law 292; Fessler v. Town of Union, 67 N. J. Eq. 14; Borough of Spring Lake v. Polak, 76 N. J. Eq. 212. From these authorities it is apparent that the filing of the map of 1865, and the execution of conveyances of lots by reference thereto, were operative to effect an irrevocable dedication to public use of the two blocks of land marked respectively Turner Park and Singer Park, unless a part of the stipulation filed herein and about to be referred to may be found of controlling force. That part of the stipulation is to the effect that at the time that map was filed the Gloucester Farm and Town Association did not intend the designation of the words “Singer Park” and “Turner Park” to be taken in the sense that those blocks were for public irse as parks, but intended to set the blocks aside for the use of two German societies of those names as homes and for private recreation purposes, which societies were organized and maintained by the Gloucester Farm and Town Association for advertising purposes to attract Germans to the proposed German settlement; the stipulation further sets forth that these two German societies in fact secured locations elsewhere for their use, and that these two blocks have never been used for park purposes. In Price v. Plainfield, supra, Mr. Justice Reed, in speaking for our court of errors and appeals, touching a block of land marked “Park” on a’ filed map, said: “There is no such uncertainty of meaning as will let in parol testimony to vary or modify it. If the grantors had a different intention, that should have appeared from the papers themselves. The popular and natural meaning should have been so modified, in accordance with the intention. I think that all parol testimony of such intention was incompetent to vary the purport of the mapping, filing and conveyances, and that a dedication was conclusively effected by such acts.” See, also, Bayonne v. Ford, supra, in which this conclusive force to be given to the word “park,” when so used, is declared to be required by public policy. But even though a dedication of these two parks was not effected by the filing of the map of 1865, and the subsequent conveyance with reference to it, the stipulation is not clear’ that any use of' the parks for less than the entire public was intended when the 1872 map was filed; that map and subsequent conveyances with reference to it clearly amount to a dedication of these two parks, and the deed to the city of these parks containing the condition that the “Public Places” and streets so conveyed are forever to remain public, must be regarded not only as a renewed dedication, but also as an acceptance of such dedication by the city. By that deed the naked fee, until then held by the original proprietors, also passed to the city.

The three blocks of land which are known as the market places in some respects differ, from the two parks. The delineation of these three blocks on the 1872 map does not. import a dedication to public use; it imports a use by the railroad of a part of the blocks for station purposes, and imports no use of the remaining portion of the blocks inconsistent with unrestricted title of the proprietors. But the filed map of 1872 delineates these three blocks as blank spaces, save as to the numbers placed on the blocks and the words “Market PL” on block 320, and the words “Stuben Pl.” on block 435, and the tracing of what appears to be the exterior boundary lines of the station tract. All blocks on that map, except these three blocks and the two parks already referred tó, are subdivided into lots. In the deed to the city these three blocks are referred "to as “the Three Market Places” and as being subject to a certain permission given to the Camden and Atlantic Bailróad Compañy to locate a depot on the southeast portion of “these market places.” The condition in the deed above quoted also applies to these three blocks. The authorities above cited appear to impel the conclusion that the two maps, taken together, followed by the deed to the city containing the condition above quoted, import a dedication of those three blocks to public use, subject to the right of the railroad company to use a specified portion of them for station purposes.

All that has been said up to this time has reference alone to strictly public rights arising from dedication of land to public use.

But it is unnecessary to determine here whether under the facts disclosed in this case the parks and market places in question are to be deemed to have been dedicated to public use. Distinct and independent private rights may arise in transactions of this nature which this court may protect from invasion.

The leading case touching the nature and extent of such private rights is Lennig v. Ocean City Association, 41 N. J. Eq. 606. In that case Mr. Justice Dixon, speaking for our court of errors and appeals, says: “Whenever the owner of a tract of land lays it out in blocks and lots upon a map, and on that map designates certain portions of the land to be used as streets, parks, squares, or in other modes of a general nature calculated to give additional value to the lots delineated thereon, and then, conveys those lots by reference to the map, he becomes bound to the grantees not to use the portions so devoted to the common advantage otherwise than in the manner indicated.” * * * “From this doctrine it of course follows that such distinct and independent private rights, in other lands of the grantor than those granted, may be acquired by implied covenant as appurtenant to the premises granted, although they are not of such a nature as to give rise to public rights by dedication. The object of the principle is not to create public rights, but to secure to persons purchasing lots under such circumstances those benefits, the promise of which it is reasonable to infer has induced them to buy portions of a tract laid out on the plan indicated. Clark v. Elizabeth, 37 N. J. Law 120; 40 N. J. Law 172; Bayonne v. Ford, 43 N. J. Law 292.”

In Bridgewater v. Ocean City Railroad Co., 62 N. J. Eq. 276; affirmed, 63 N. J. Eq. 798, this implied covenant was enforced at the suit of a lot holder distant from the tract which by implied covenant the land company had agreed to keep open and who had purchased from a grantee of the land company, and was enforced against a purchaser of the restricted space

It follows that in purchasing lots with reference to-the map of 1872, complainant came into enjoyment of private property rights in the nature of easements arising from implied covenants from the town site proprietors that the vacant squares delineated on that map should not be devoted to uses inconsistent with those imported by the map, in the absence of evidence disclosing that complainant knew, or had reason to know, that the squares were in fact reserved for purposes other than the uses v hich the map imported. As defendant municipality tjok the fee to these open squares under a deed referring to that map, and under the express condition that tiie avenues and public places so conveyed to it should forever remain public for the purposes they had been originally set apart and reserved, these .miplied covenants are necessarily enforceable against the proposed acts of the municipality which are designed to defeat the restricted use.

It remains to consider the effect of the legislation already referred to.

The act of 1890 is designed to discharge “the conditions, limitations and restrictions” contained in the deed.

The act of 1915 is designed to authorize the sale by a municipality of land acquired by it for public use, when the land is no longer needed for such use.

The question here involved does not include a consideration of the power of the legislature to yield up the right of the public in land devoted to a public use by dedication. That power appears to be conceded in Methodist Church v. Hoboken, 19 N. J. Eq. 355, and in Fessler v. Town of Union, 67 N. J. Eq. 14, 25. But where private property rights exist in the nature of an easement, touching the use of the land by the owner of the fee, it is obvious that no legislative power can disturb such rights. It is such a private property right that complainant herein asserts and that our constitution protects.

As it is conceded that the proposed sale of these blocks by defendant municipality is for the purpose of enabling purchasers to appropriate the land so sold to manufacturing and other commercial uses and will be operative to effect that result, I am obliged to' .advise the issuance of an injunction against such sales.