George Van Tassel's Community Funeral Home v. Town of Bloomfield

• Decision Date: 12 May 1950
• Docket Number: No. C--1191,C--1191
• Citation: 8 N.J.Super. 524,73 A.2d 636
• Parties: GEORGE VAN TASSEL'S COMMUNITY FUNERAL HOME, Inc. v. TOWN OF BLOOMFIELD.
• Court: New Jersey Superior Court

Page 524

8 N.J.Super. 524

73 A.2d 636

GEORGE VAN TASSEL'S COMMUNITY FUNERAL HOME, Inc. v. TOWN OF BLOOMFIELD.

No. C--1191.

Superior Court of New Jersey

Chancery Division.

May 12, 1950.

Talmage & Waldron, Bloomfield, Frederick C. Waldron, Bloomfield, for the plaintiff.

Thomas J. Markey, Bloomfield, for the defendant.

FREUND, J.S.C.

Nearly one hundred and fifty years ago, there was purchased, by subscription, from David Baldwin a strip of land lying between the easterly side of Broad Street and the westerly boundary line of property on Broad Street in the Township of Bloomfield, New Jersey. The deed of David Baldwin conveying the strip of land contained the following provision: 'to be and remain to and for the purpose and use of a common or green for the inhabitants of Bloomfield forever and for no other use whatsoever, and it is expressly understood that there shall be no buildings of any description erected on said premises.' Since that time, the strip of land has been continuously used and maintained by the municipality for park purposes.

In July, 1947, the plaintiff purchased a vacant lot commonly known as No. 199 Broad Street, in the Town of Bloomfield, which lot abuts the park strip. The plot had formerly been owned by the Thompson family, who had occupied a dwelling on the premises until its demolition in 1944. It is claimed that the Thompsons continuously from 1902 until 1944 drove across the park strip to Broad Street as a means of ingress to and egress from their property. The defendant denies such user was continuous, but admits the user for an indefinite period of time. There is no proof of user since 1944, when the building was demolished.

The contract of the plaintiff for the purchase of the lot contained the following provision: 'Deed shall convey only such right, or easement, if any, which the parties of the first part may have by reason of their ownership, vested or acquired, in any manner with respect to the lands immediately in front of the described premises and running parallel to Broad Street as the same is now laid out, and it is understood the parties of the first part make no representation of any kind with respect thereto, and on the contrary believe no right or easement exists as to the same.'

The plaintiff is also the owner of a parcel of land at No. 337 Belleville Avenue, Bloomfield, upon which is erected a building which is used as a funeral home. This parcel adjoins at right angles the plaintiff's lot on Broad Street, which is used by it as parking space for automobiles.

The plaintiff filed its complaint seeking the establishment of an easement for driveway purposes over and across the common or green as a means of ingress to and agress from the westerly sideline of its property to the easterly line of Broad Street, and to enjoin the defendant from interfering with the plaintiff's use of the driveway. The plaintiff bases its right to such easement upon two grounds: (1) that the dedication of the common was invalid because the deed from David Baldwin, dated September 19, 1809, was not recorded until about nine months after its date, during which interim the grantor died, and (2) that the plaintiff's predecessors in title had used a portion of the common as a driveway for over forty years.

The plaintiff argues that as the deed to the park strip was not recorded until after the death of the grantor there was no valid dedication, but 'a mere offer to dedicate' which was revoked by the grantor's death. Dedication is the permanent devotion of private property to a public use; no particular form of dedication is required; it may be accomplished by any unequivocal act of the owner manifesting such an intention. Den ex dem. Board of Selectmen, etc., of Jersey City v. Dummer, 20 N.J.L. 86 (Sup.Ct.1843); Mayor &c. Jersey City v. Morris Canal & Banking Co., 12 N.J.Eq. 547 (E. & A. 1859); Trustees of Methodist Episcopal Church of Hoboken v. Council of Hoboken, 33 N.J.L. 13 (Sup.Ct.1868); Wood v. Hurd, 34 N.J.L. 87 (Sup.Ct.1869); Black v. Central R.R., 85 N.J.L. 197, 89 A. 24, 51 L.R.A.,N.S., 1215 (E. & A. 1913); Thompson, Real Property, Vol. 2, Sec. 481. In the Hoboken case, supra, Mr. Justice Depue held 'where the right of the public to the use of land rests upon no other foundation than a dedication to public uses, the cases uniformly hold that the easement is vested in the public. * * * It may be valid without any specific grantee in esse at the time, to whom the fee could be granted. And in this respect it forms an exception to the general rule of transferring or creating an interest in lands, as it may be done without a deed, and without any person competent to accept the grant as grantee. The public is an ever existing grantee, capable of taking a dedication for public uses. * * * In fact it is the essence of a dedication to public uses that it shall be for the use of the public at large. * * * There can be no dedication, properly speaking, to private uses. * * * No mere private right can be set up.'

It would thus appear from long established rules that there may be a valid dedication without a specific grantee in esse, even without any deed whatsoever. Here, the dedication was to specific grantees by deed, properly executed, witnessed and acknowledged. An intention to dedicate to public use could hardly be expressed more clearly and forcibly than in the language of the Baldwin deed of dedication. Moreover, not only did the grantor convey to specific grantees for specific purposes, but the deed covenanted 'the purpose and use of a public common or green and for no other use whatever.'

Further, a subscription list, a photostatic copy of which was admitted in evidence, is dated April 24, 1807, more than two years before the date of the deed of dedication. The pledge of subscription reads as follows:

'Thirty days after date we the subscribers promise to pay to John Osborn, Stephen Morris or Isaac Ball (subsequently named grantees in the deed of dedication) the several sums annexed to our respective names either in cash or fensing materials for the purpose of purchasing a certain three-cornered piece of land belonging to David Balwin to be thrown out for the use of the public.

'Bloomfield, April 24th, 1807.'

The signatures of forty-one subscribers are annexed to the pledge, among them David Baldwin, the subsequent grantor. In my opinion, the pledge offers conclusive proof not only that as early as two years before the date of the deed, the subscribing citizens of Bloomfield contemplated a dedication of the property to be purchased, but that David Baldwin as the owner of the property to be purchased contemplated its sale and as a public-spirited citizen himself subscribed to its purchase.

The plaintiff argues that the intent of the owner must be followed by an abandonment of his exclusive enjoyment of the property and the intent to accept the land must be followed by its use and appropriation. At this juncture, when the green has been used as a...