H. B. Anthony Shoe Co. v. W. Jersey R. Co.

• Decision Date: 30 December 1898
• Citation: 57 N.J.E. 607,42 A. 279
• Parties: H. B. ANTHONY SHOE CO. v. WEST JERSEY R. CO.
• Court: New Jersey Supreme Court

42 A. 279

57 N.J.E. 607

H. B. ANTHONY SHOE CO.

v. WEST JERSEY R. CO.

Court of Errors and Appeals of New Jersey.

Dec. 30, 1898.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by the H. B. Anthony Shoe Company against the West Jersey Railroad Company. From a decree dismissing complainant's bill, it appeals. Affirmed.

Thomas B. Harned, for appellant.

J. H. Gaskill, for respondent.

VAN SYCKEL, J. The complainant in its bill alleges that it is the owner of land, abutting on the west side of Seventh street in the city of Camden, upon which there is a shoe factory, and that the defendant company has laid and is using four separate parallel tracks on the said street in front of its premises, whereby complainant is practically excluded from the use of the street. The bill denies the right of the defendant to maintain its tracks in the street, declares they are a nuisance, and prays that the defendant may be enjoined from the further appropriation of the highway to its uses.

The facts presented by the case are these: Richard M. Cooper, in his lifetime, owned in fee a large tract of land, embracing what is now called "Seventh Street" and lands lying on both sides of it, and also including the premises now owned by the complainant. In 1845 the executors of Richard M. Cooper conveyed to Hart and McCurdy a portion of the said tract lying on the southerly side of what is now Seventh street, in which deed Seventh street is described as a "proposed street." With the exception of this language in the executor's deed of 1845, there is nothing in the case touching the question of dedication of the street by the Coopers, and therefore, at the time of the conveyance to the defendant company hereinafter stated, there is no evidence to establish a dedication by the Coopers of the half of Seventh street owned by them. In 1847 Hart and McCurdy divided the lands which they had acquired by the deed of 1845, each conveying to the other. In said deeds they described the land conveyed as running along Seventh street, but the street at that time had not been opened to the public, or used as a street. In 1854 the defendant company built its railroad, and its center line was laid along the center line of this paper street, called "Seventh Street." The railroad company took proceedings to acquire this land, on which their tracks were laid, by condemnation. Commissioners were appointed, who by their report, dated September 11, 1854, awarded to McCurdy, the owner of the fee, the sum of $525. This sum was accepted by McCurdy, who, by his deed dated September 19, 1854, conveyed to the railroad company in fee the one-half of the land embraced in what is now called "Seventh Street" being the strip of land on which its tracks are laid. Hart also made a like conveyance to the railroad company, by deed of even date with that of McCurdy to the railroad company. The complainant derives its title to the lot abutting on Seventh street from Hart and McCurdy, but by a conveyance long subsequent to the deed to the railroad company.

The railroad company, therefore, is the legal owner of the fee of that part of Seventh street on which the premises of the complainant abut, and the title of the complainant extends only to the exterior line of the highway. When Hart and McCurdy, in their deeds to each other, described the land conveyed as running along Seventh street, there had been no dedication of the half of that street which was owned by the Cooper estate. As to that estate, it was only a "proposed street." Dedication is a question of intention, and the owner is not concluded until his purpose to surrender his land to the public use is clearly manifested. At the time Hart and McCurdy made partition, they knew that, so far as the Cooper estate was concerned, it was a "proposed street" only. Speaking for myself, I entertain grave doubt whether an intention should be imputed to them to dedicate their half of the street irrevocably to the public before there was a dedication by the Coopers of the...