Mayor v. Groff

• Decision Date: 26 February 1900
• Court: New Jersey Supreme Court
• Parties: MAYOR, ETC., OF ATLANTIC CITY v. GROFF.

45 A. 916

64 N.J.L. 527

MAYOR, ETC., OF ATLANTIC CITY

v. GROFF.

Supreme Court of New Jersey.

Feb. 26, 1900.

Error to circuit court, Atlantic county.

Action in ejectment by the mayor and common council of Atlantic City against Catherine Groff. Judgment for defendant and plaintiff brings error. Reversed.

Argued November term, 1899, before MAGIB, C. J., and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Godfrey & Godfrey, for plaintiff in error.

Robert E. Stephany, for defendant in error.

PER CURIAM. The judgment in favor of defendant in error, brought here by this writ of error, was founded upon the finding of the circuit court judge, sitting without a jury, and trying the issue joined in an action of ejectment. Plaintiff in error was plaintiff below, and sought to obtain, by an action of ejectment, the possession of land which it claimed had been dedicated to public use as a public street. Reversible error is, in our judgment, pointed out by the second assignment of error. By the bill of exceptions upon which this assignment was based, it appears that the trial judge conceived that plaintiff's success in the action required proof that the city had formally accepted the dedication of the locus in quo as a public street, or that there had been such unequivocal public user thereof as indicated such acceptance. There was uncontroverted evidence that the owner of the locus in quo had devoted or dedicated it to public use as a street whenever the municipal authorities should choose to so use it. Such a dedication cannot be retracted, but is irrevocable. Acceptance by some formal act or by long-continued public user, may be necessary to cast upon the municipal authorities the duty of repairing and maintaining the street in proper condition for public travel. This was what was intended by the expressions used in the language of the supreme court in New York & L. B. R. Co. v. Borough of South Amboy, 57 N. J. Law, 252, 30 Atl. 628, where the sole question was as to the right of the municipality to pass an ordinance directing the removal of alleged obstructions upon land claimed to have been dedicated to public use as a street. An action by municipal authorities to obtain possession of land dedicated to such public uses has been repeatedly approved by our courts, and it is impossible to conceive how acceptance of such dedication could be more plainly disclosed than by such an action. Methodist Episcopal Church v. City of Hoboken, 33 N. J. Law, 13; Hoboken Land &...