Fessler v. Town of Union

• Decision Date: 17 October 1903
• Citation: 67 N.J.E. 14,56 A. 272
• Parties: FESSLER v. TOWN OF UNION.
• Court: New Jersey Court of Chancery

56 A. 272

67 N.J.E. 14

FESSLER

v. TOWN OF UNION.

Court of Chancery of New Jersey.

Oct. 17, 1903.

Bill by Fannie Fessler against the town of Union. Final hearing on bill, answer, and proofs. Decree for complainant.

The object of this bill is to restrain a nuisance in the nature of a purpresture. It is also, in effect, a bill by a cestui que trust to restrain a breach of trust by a trustee. The complainant is the owner of 10 lots, each 25 feet by 100 feet, and each facing on Franklin street, in the town of Union, in the county of Hudson. The rear of six of which lots, and also the rear of two other lots of the same size which do not face on Franklin street, she alleges bound upon a public square which was dedicated to the public by the owners of a tract of land which comprised the complainant's lots, and many others in the neighborhood, by the usual mode of laying the plot out in streets and lots, filing the same in the county clerk's office, and selling and conveying lots by reference to the map. On that map appears a plot of land not laid out in streets, but so marked as to dedicate it to the public. A copy of so much of that map as comprises the plot in question and complainant's holdings is annexed:

The nuisance of which she complains is the erection of a fire-bell tower on that square, and within about 30 feet of her premises. The structure is composed of iron posts, beams, and braces. The defendant claims no legal title to the premises on which the fire-bell tower is erected, except such as is derived from the same acts of dedication upon which the complainant relies, and a sort of adverse possession or user of some part of the square, which, however, does not include the locus of the tower. Some time prior to the year 1852 the land in question was part of a tract of about 45 acres, the property of the Hudson County Real Estate Company, and was surveyed in that year, and laid out in streets, lots, etc., by William Hexamer, who filed in the clerk's office a handmade map of it March 15, 1855. This map does not appear to have the clerk's indorsement on it. At the same time there was filed, and so marked by Mr. Gilchrist, then county clerk, a lithograph copy of that map, with some additions. 'These lithographs, as might be expected, were made in great numbers and handed to all purchasers. In fact, a large number, if not all, of the lots were disposed of by a sort of lottery or raffle among the members of the association, and the lithographs distributed to them for the purpose of reselling, and all conveyances were made by reference to it. The tract is bounded on the Southwest by the Hoboken & Hackensack Turnpike, and was laid out in streets at right angles to each other, and nearly on north and south and east and west courses, but cutting the Hoboken & Hackensack Turnpike at an acute angle. To the northeast of and parallel with that street was laid out a street called Kossuth street, which also cuts the other streets on the map at an acute angle. The lots laid out on the map are nearly all 25 feet by 100 feet in size, and are all separately numbered on the map, and the evidence indicates that the town has been built up in accordance with that map. On that map, one of the streets, running north and south, was called Hutton street (now called New York avenue). Another, running east and west, was called Franklin street. One hundred feet south of Franklin street, on the east side of Hutton street, Was left on the map an open space 150 feet wide, 330 feet along on the east side, and 220 feet along on the west side, next to Hutton street, making an acute angle at the southeasterly corner thereof. On this space on the map is laid down a small lake, shaped like an elongated egg, and extending from about 75 feet from the southeast corner to within about forty feet of the northwest corner, and marked "Indian Pond," and southwest of it are printed the words "Liberty Place." In the northeast corner, between the pond and the angle, is laid down a small triangular plot, as if for a flower bed. Kossuth street, if its lines were continuous, would cross the pond diagonally. In nearly the center of the lake is marked an island, with a tree on it, and on each side and on the southerly end a row of trees is marked. On the handmade map the pond is somewhat smaller, and does not extend so far to the southward, and no trees are laid down on it, except one on the island, and no mark of a triangular inclosure is found to correspond with that on the lithograph. The proofs show that there was at the time of the making of the map, and for years afterwards, an irregularly shaped pond of stagnant water, which varied in depth and size with the condition of the weather. The drainage was to the southward, and the ground to the north and east of it was comparatively dry and solid. At the time of making the map and selling therefrom there were no trees, except that on the island in the middle of the pond. Most of the lots owned by complainant face on Franklin street, and six of them abut in their rear on this vacant lot. There were also laid out on this map, on the east side of the said square, seven lots, numbering from 429 to 435, inclusive, of which lots complainant owns 429 and 430, which are immediately in the rear of four of the lots which she owns facing on Franklin street. These seven lots did not front on any street, and. with the exception of No. 435, had no outlet on any street, and the only access to them from the public highway was over this square. Of these lots, Nos. 431. 432, and 435 were conveyed by the Hudson County Land Company to several purchasers by a description which expressly bounded them on Liberty Place.

On the 15th of June, 1857, the Hudson County Real Estate Company made a lease to John Ehlers, by which they demised and let to him the square in question, by the following language: "All that certain lot parcel or tract of land and land under water situate in the township of North Bergen aforesaid and which on a certain map of property belonging to the said The Hudson County Real Estate Company made by William Hexamer and duly filed in the Clerk's Office of the said County of Hudson on the fifteenth day of March, A. D. 1855 is marked, designated and laid down as Indian Pond, together with the land and premises surrounding said Pond and unnumbered and not laid out into lots as shown on said map a part of which is known and designated as 'Liberty Place' Bounded Westerly by Hutton Street Northerly by lots No. 378, 379, 380, 381, 382 & 383, Easterly by lots No. 429, 430, 431, 432, 433, 434, & 435 and 470 and Southerly by lots Number 474 and 475 as said street and lots are laid down on said map respectively excepting and reserving to the said parties of the first part, out of the said premises above described a space of twenty-five feet wide immediately along the line of said lots above mentioned for a public road, so as to allow a public way all around said pond which public way is to be immediately adjoining the lots above mentioned," for the term of 10 years, at an annual rental of $30, to be paid "to the Trustees of School District No. Six in said Township for the time being for the use and to be applied by said Trustees for the education of poor and indigent children at Union Hill in said Township," with privilege of renewing for 10 years.

In 1850, after the raffle had taken place, and many of the conveyances made, two common-law judgments, aggregating less than $2,000, were recovered against the Hudson County Real Estate Company, and all the premises comprised in the map were sold at sheriff's sale on or about December 20, 1859, to Frederick Baare, Jacob Schweitzer, and John Ehlers, in whom, or their survivors, the record title to the park in question is now vested. They subsequently made conveyances to the holders of title to such of the lots as had been disposed of by lottery, upon payment of a small sum of money by each. The probability is that this was done to cure any defects which might have arisen in the title by reason of the decision of the Court of Errors and Appeals in Wooden v. Shotwell in 1852, reported in 23 N. J. Law, 405, and same case, affirmed on appeal (1854) 21 N. J. Law, 789. The town of Union was incorporated in 1801 by an act of the Legislature approved March 29, 1804 (P. L. 1804. p. 561 et seq., c. 330). In 1860 the Legislature passed a supplement to that act which supplement was approved March 20, 1806 (P. L. 1800, p. 521 et seq., c. 214). Section 13 of that supplement provides as follows: "That the said council shall also have power and authority to fill up the pond and grade and improve the property surrounding the same, as the same is laid out and designated on the map entitled map of the property belonging to the Hudson County Real Estate Company, known as Union Hill; the said pond known as Indian Pond, and certain property surrounding the same, having been laid out on said map for public use, and in case said council think proper so to do, continue Kossuth street through, and over the same; and the said pond and the property surrounding the same, thus laid out for public use, shall also be town property." The authorities of the town, some time prior to the year 1891, had granted leases or permissions to various persons to erect temporary buildings on some portions of the square, and two small structures were erected immediately in the rear of complainant's dwelling, which, it is proper to observe, occupies a portion of the fourth lot to the east of Hutton street, or New York avenue; the three adjoining lots to the west thereof being used as a yard. Some time after the year 1891, as the result of a petition of the "property owners, including the complainant, all those temporary buildings were removed, leaving the square originally laid out entirely free from the incumbrance of any building, with an exception presently to be stated. The pond was more or less obliterated, and...