City of Long Branch v. Toovey

• Decision Date: 06 February 1928
• Docket Number: No. 112.,112.
• Citation: 140 A. 415
• Parties: CITY OF LONG BRANCH v. TOOVEY.
• Court: New Jersey Supreme Court

140 A. 415

CITY OF LONG BRANCH

v. TOOVEY.

No. 112.

Court of Errors and Appeals of New Jersey.

Feb. 6, 1928.

Appeal from Circuit Court, Monmouth County.

Action by the City of Long Branch against Wilhelmina Toovey. Judgment for plaintiff, and defendant appeals. Affirmed.

Quinn, Parsons & Doremus, of Red Bank, for appellant.

Charles F. Sexton, of Long Branch, for respondent.

MINTURN, J. The facts are substantially matters of record, and are therefore not in dispute. The heirs of Samuel Warden, who in his lifetime was owner of a tract of land in the city of Long Branch, in which the locus in quo was situated, filed in the county clerk's office a map of the tract, on August 12, 1919. The map indicated streets and lots thereon, and some of the lots were sold with reference to the map, which bore this inscription, "Map of building lots of homestead property of Samuel Wardell, deceased, at Long Branch, N. J. W. H. De Nyse, Surveyor, January 10, 1903." Upon the map was shown, inter alia, Grand avenue, 50 feet in width, running to the river. On December 8, 1902, Mary L. Cooper and husband, Clemence W. Weatherby, and Samuel Weatherby, heirs of Samuel Wardell, conveyed to Wilhelmina Toovey, the defendant, by warranty deed that portion of Grand avenue delineated on the map lying between McClennan street and the river, which she thereafter inclosed and proceeded with her daughter to build upon. At this juncture the city instituted this action in ejectment to maintain the public right thereto, and the trial of the action resulted in the direction of a verdict for the city, from which judicial action this appeal was taken.

It is to be observed that the deed to the defendant was executed by the heirs of Samuel Wardell, and refers in its description to the locus in quo, with reference to the map. The main insistence of the defendant is that the filing of the map did not ipso facto result in an absolute dedication of the lands delineated thereon for public use until the city by some formal resolution of acceptance, or by unequivocal act of possession, had manifested its intention to accept the public streets and highways thereon delineated. It was further insisted that the present demand of the city is inconsistent with the acts of its officers in accepting taxes assessed upon the locus in quo, and the act of its engineer in giving lines to adjacent owners of property for the laying of curbs on an intersecting street, which acts are inconsistent with its present claim of ownership and possession, under the dedication.

It was further contended that the locus in quo was allowed by the city to go into disuse and to become overgrown with wild verdure, to such an extent as to indicate an abandonment of any public concession created by the dedication, which conditions, it is argued, presented a factual question as to acceptance, by the city, to be determined by a jury.

The legal solution of the question thus mooted is not res nova in this jurisdiction since by repeated adjudications in this court and the Supreme Court the law has been established contrary to the contentions of the defendant.

The rule of law thus established may therefore be considered at this period of our legal history as academic and an analytical review of the cases is therefore deemed unnecessary. It must suffice, however, to state that 60 years ago, in Trustees of the M. E. Church v. Hoboken, 33 N. J. Law, 13, 97 Am. Pec. 696, the Supreme Court, speaking by Mr. Justice Depue, declared the legal rule to be that:

"When the owner of lands procures them to...