Dvorin v. City of Bayonne

• Citation: 161 A. 654
• Parties: DVORIN et al. v. CITY OF BAYONNE.
• Decision Date: 25 June 1932
• Court: New Jersey Court of Chancery

161 A. 654

DVORIN et al.

v. CITY OF BAYONNE.

Court of Chancery of New Jersey.

June 25, 1932.

Syllabus by the Court.

1. Where, as in the case sub judice, a deed particularly describes the lands conveyed as beginning at the intersection of streets named, by lot and block number on an official city assessment map, such recital estops grantees named in said deed from denying the city's rights in and to such streets.

2. The exercise of the public right of actual possession and dominion over public streets may be suspended and lie dormant until such time as, in the judgment of the proper legal authorities, public exigencies require their possession and use.

3. The bringing of an action in ejectment by the city is plenary evidence of its acceptance of the dedicated streets to which such action relates.

4. The aid of a court of equity in the enforcement of a legal right, the existence or extent of which is substantially disputed, cannot be invoked until such right is settled at law.

5. No right can be obtained against the public in dedicated lands by adverse possession.

6. Equity follows the law. It has no intention, nor even desire, to enlarge the boundaries of its jurisdiction.

Suit by Julius Dvorin and another against the City of Bayonne. On complainant's application to strike the answer and to restrain the defendant's action in ejectment.

Order denying the application.

Charles Rubenstein, of Bayonne, for the application.

James Benny, of Bayonne, opposed.

FALLON, Vice Chancellor.

Complainants' application to strike defendant's answer and amended answer, and to restrain defendant's action in ejectment, was heretofore determined by me adverse to complainants, but no order was entered thereon because complainants' solicitor applied for and was granted a rehearing with leave to submit additional proofs; and leave was also granted defendant's solicitor to submit additional proofs. Additional proofs were submitted, read and considered, and arguments of counsel were heard and considered. I adhere to the determination heretofore made, and will advise an order denying the application of complainants. In view of the fact that an amended answer was filed herein, I have deemed it unnecessary to consider the objections urged to the original answer filed. The grounds urged for striking the amended answer are: (1) That it was improvidently filed; (2) that the defendant is barred and estopped from filing such answer because of a stipulation filed in the cause; (3) that the amended answer is "otherwise contrary to law and equity." As to the first grounds urged, I adjudge that the amended answer was not improvidently filed; it was filed with leave of the court in the proper exercise of the court's discretion. As to the second grounds urged, I adjudge that the legal effect of the stipulation mentioned may be determined only on final hearing. As to the third grounds urged, I adjudge that the amended answer is not "otherwise contrary to law and equity." Such an objection is too general, and, lacking in specification, does not warrant judicial consideration. In addition to the matters mentioned in complainants' notice of application to strike the amended answer, and to restrain defendant's action in ejectment, complainants' solicitor urged in argument that defendant has no rights in and to the lands which are the subject of dispute between the litigants herein, and that whatever rights defendant may have had therein were divested by means of proceedings instituted and prosecuted by complainants under authority of chapter 52 of the Laws of 1927 (P. L. p. 104), and that defendant having annually assessed the disputed land for purposes of taxation estops defendant from denying complainants' claim in the premises, and that the court is limited in the matter sub judice to the determination of the constitutionality of the statutory enactment aforesaid. This court cannot in the matter sub judice pass upon the constitutionality of said act it was urged in behalf of the defendant that the aforesaid enactment is inapplicable to the instant case, and that there are no allegations in complainants' bill upon which may be predicated their claim of divestiture of defendant's right in and to the land forming part of the alleged street in question. Complainants' bill appears to have been filed to obtain a decree to quiet title to certain land fronting lands title to which was acquired by them from Maria Harding, and George Harding, her husband, by deed dated March 12, 1924, described therein as beginning at the intersection of East Fortieth street and Avenue E, one of the lots being designated as lot No. 8, in block 132, and the other as lot No. 1, in block 139, on the official assessment map of the city of Bayonne. Complainants argue that East Fortieth street is merely a paper street and that the defendant had not prior to the filing of their bill of complaint herein accepted a dedication thereof.

Where, as in the case sub judice, a deed refers to the lands conveyed by lot and block number as designated on an official assessment map of the city, and also describes such lands as beginning at the intersection of certain streets named in the deed, such recital estops the grantee from denying the city's right in and to such streets, and also estops such grantee from claiming that a dedication of either of such streets was not accepted by the city. To cite the numerous authorities sustaining the rule of law above stated would serve no useful purpose herein. It will suffice, in my judgment, to cite the case of Eddy v. Inhabitants of City of Plainfield, 140 A. 668, 6 N. J. Misc. 263, in which is cited State (Central Railroad Company of New Jersey) v. City of Elizabeth, 37 N. J. Law, 432; Camden v. McAndrews & Forbes Co., 85 N. J. Law, 260, 88 A. 1034; Tweddell v. Village of Seuth Orange, 95 N. J. Law, 327, 112 A. 511. See, also, McElroy v. Borough of Fort Lee (C. C. A.) 46 F.(2d) 778, on page 780, and cases cited. In Tweddell v. Village of South Orange, supra, it was held that the recognition of a street by a description in a deed is as conclusive as if the street was dedicated by a map. The defendant herein not only claims that it has accepted the dedication of the land in dispute as and for a public street, but that it has manifested its acceptance thereof by an action in ejectment instituted against complainants. There can be no reasonable dispute of defendant's right of action in ejectment for lands dedicated to a public use for a street. Hoboken Land & Improvement Co. v. Mayor, etc., of Hoboken 36 N. J. Law, 510. In Atlantic City v. Groff, 64 N. J. Law, 527, 45 A. 916, it was held that the commencement of an action in ejectment is plenary evidence of the city's acceptance of dedication. See. also, to the same effect, Hohokus Tp. v. Erie R. Co., 65 N. J. Law, 353, at page 362, 47 A. 566; Twcddell v. Village of South Orange, supra. Acceptance by a formal adoption by municipal authorities or by public user is necessary to impose upon the municipality the duty to repair the street accepted, but is not essential to the consummation of the dedication so as to cut off the...