County Park Com'n of Camden County v. Kimble, C--1909

• Decision Date: 09 December 1952
• Docket Number: No. C--1909,C--1909
• Citation: 24 N.J.Super. 221,93 A.2d 647
• Parties: COUNTY PARK COMMISSION OF CAMDEN COUNTY v. KIMBLE et al.
• Court: New Jersey Superior Court

Page 221

24 N.J.Super. 221

93 A.2d 647

COUNTY PARK COMMISSION OF CAMDEN COUNTY v. KIMBLE et al.

No. C--1909.

Superior Court of New Jersey Chancery Division.

Dec. 9, 1952.

Henry M. Evans, Gloucester City, attorney for plaintiff.

Albert E. Heal, Jr., Camden, attorney for defendants, except defendants Helen L. Kimble, Walter J. Widmayer and Geraldine K. Widmayer.

HANEMAN, J.S.C.

Plaintiff herein seeks a construction of the terms of a covenant contained in a certain deed from Stanley C. Kimble and his wife to the plaintiff, the County Park Commission of Camden County. The purpose of this action is to elicit from this court a determination as to whether the plintiff would effect a forfeiture under a reversionary clause in said deed if it granted permission to property owners, whose lands abut the tract conveyed in said deed, to construct private driveways connecting with a park drive.

In connection herewith I find the following facts:

The County Park Commission of Camden County was created in 1926 pursuant to chapter 331 of the Laws of 1926 (now R.S. 40:37--195 et seq. N.J.S.A.). Under this Act it was authorized, inter alia, to acquire lands by purchase, gift or condemnation, for the purpose of establishing public parks and open spaces within said county.

By deed dated January 10, 1929 it acquired from Stanley C. Kimble and Helen L. Kimble certain real estate in the Township of Delaware. Said deed contained the following language:

'A further consideration for the conveyance of the lands hereinabove particularly described is that the party of the second part will dedicate the same to the public for park and open spaces for public resort and recreation.

'The sole purpose of this conveyance is the dedication of the said land to the public purposes aforesaid, it being understood and agreed that if, at any time in the future, the said dedication should fail and the said lands, or any part thereof cease to be used for the public purposes aforesaid, or any of them, the said land shall thereupon revert to the said parties of the first part, their heirs and assigns.

'And further that said conveyance is made upon the express understanding that the land of the party of the first part immediately facing or abutting the land hereinabove conveyed shall be free from any assessments for benefits arising from the establishment and maintenance of any public park, highway or other public improvement in connection with the Camden County Park Commission System of Parks within the land hereinabove described.'

Prior to the acquisition of the lands by plaintiff from the Kimbles, the former had prepared, consistent with the statute, a plot which delineated a 'proposed boulevard' running along the northerly border of said lands, 60 feet in width. Said boulevard, now known as 'Park Boulevard,' was eventually laid out. , the paved surface was 25.8 feet in width. The northerly line of this paved roadway was 15.3 feet south of the northerly line of the land acquired. This intervening strip consisted, in order commencing with the paved roadway, of an unimproved strip 3.3 feet wide, a sidewalk 6 feet wide, and an unimproved strip 6 feet wide. Both the 15.3 foot strip and the paved road surface are, however, within

The said Kimbles retained title to some

The said Kimble reatined title to some 16.63 acres abutting to the north of the land so conveyed.

In August 1935, subsequent to the death of Stanley C. Kimble, there was prepared for his said 'estate' a prospectus in connection with an advertisement for the sale of the said remaining lands. The brochure contained a map and photographs showing the locus in quo and delineated Park Drive as abutting the said lands. It contained the following statement in describing the realty and its location:

'between Marlton Pike and Park Drive, with two large dwellings Facing James G. Pennypaker Park' * * * 'paved on three sides--area, 16.63 acres' Location--* * * 'facing Park Drive' Improvements--'Concrete and asphalt streets not assessed against property * * *.'

At the top of prospectus it reads:

'For Sale

Exceptionally Desirable Rural Parkway Tract Subject to Profitable Development'

On December 7, 1936, and subsequent to the death of Stanley C. Kimble, intestate, Helen L. Kimble, as his widow and as guardian for her infant daughter Geraldine, defendants herein, conveyed the remaining portion of the said realty to Oak Grove Company. The said Helen L. Kimble, widow as aforesaid, was an officer of Oak Grove Company, i.e., president.

Thereafter, said remaining lands were conveyed by said corporation to Anthony Malatesta and Ferdinando A. Malatesta. The said Anthony Malatesta, who subsequently became the owner of the entire tract, conveyed a portion of said lands fronting the northerly boundary of the land conveyed to plaintiff, and Park Boulevard, to eight individuals, who have or are about to construct substantial residences on their respective tracts. These individuals have made application to plaintiff for leave to connect their respective properties with the paved portion of Park Boulevard by means of driveways. This would necessitate traversing the said 15.3-foot-wide strip of said boulevard.

The question for determination is whether the granting of permission to the abutting owners to construct such private driveways over this strip 15.3 feet in width would work a forfeiture under the reversionary clause in the Kimble deed.

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