Osterweil v. City of Newark

• Decision Date: 31 January 1936
• Docket Number: No. 92.,92.
• Citation: 182 A. 917
• Parties: OSTERWEIL et al. v. CITY OF NEWARK.
• Court: New Jersey Supreme Court

182 A. 917

OSTERWEIL et al.

v. CITY OF NEWARK.

No. 92.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1936.

Appeal from Circuit Court, Essex County.

Action by Julia Osterweil and others against the City of Newark. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Stein & Stern, of Newark (S. Arthur Stern and Milton B. Conford, both of Newark, of counsel), for appellants.

Frank A. Boettner, Corp. Counsel, of Newark (Raymond Schroeder, Asst. Corp. Counsel, of Newark, of counsel), for respondent.

RAFFERTY, Judge.

This is an appeal from a judgment for the defendant-respondent in an action of ejectment rendered in the Essex county circuit court. The cause was tried by the circuit court judge, sitting, by stipulation of the parties, without a jury.

The question involved is as to the right of possession of a strip of land 8 feet in width by approximately 258 feet in length, lying northerly of, and contiguous to, the northerly line of the old Morris Canal and easterly of Cherry street in the city of Newark.

The claim of appellant is based upon an alleged record title of 71 years. The defense of the respondent city rests upon a dedication in 1830, a rededication in 1836, user by the public for a long period of years, and acceptance of the dedication and the rededication by ordinance of the city of Newark in 1928.

The common source of the claimed title of each of the parties is found in George Holden and Henry Holden by virtue of a deed dated and recorded in the clerk's office of the county of Essex on November 30, 1824. There was introduced into evidence a map referred to as the "Holden Map" in which the premises conveyed to Holden is mapped out into 88 lots expressly bounded and containing express measurements. This map contains also references to the Morris Canal and to certain streets, more particularly Canal street. Morris Canal is indicated as running through Canal street. Northerly of Morris Canal, this street is indicated to be of the width of 25 feet. For some distance lengthwise of Canal street and northerly of the canal, a line parallel to the northerly line of the canal is drawn, which line at a distance of approximately 390 feet easterly of Mulberry street appears to fade out rather than discontinue, and again seems to reappear farther easterly on the map. It is contended for appellant that, assuming dedication by the map, the strip of land between the parallel lines, claimed to be 8 feet, was reserved from the dedication, and it is with respect to this strip of land, dominion over which has been asserted by the city, that appellant seeks a judgment in ejectment against the city. Holden sold certain of the lots so mapped with reference to the map. Thereafter, Holden sold a portion of the premises to one Beach, who mapped his holdings, setting out the same by lots and blocks and showing the disputed premises as Canal street, but without reference to the parallel line indicated on the Holden map. The Beach map was filed in the office of the clerk of Essex county of March 23, 1836. Lots were sold by Beach with reference to his map. The Holden map does not appear to have been filed.

In the bill of particulars furnished to respondent by appellants and placed in evidence in the court below, appellants, in making out their claim of title to the premises, recite in the second item thereof the Holden map. Appellants recite also a bargain and sale deed from Beach to Bolles, dated November 14, 1835, which purports to convey part of the 8-foot strip in question, in which deed it is recited that the grantee, his heirs, etc., are "to have the exclusive privileges of occupying the said strip in such manner as shall be permitted to others owning lots fronting on Canal Street (referring to lots shown on Beach map) for the purpose of storing wood, coal and other articles thereon in such way as shall be permitted by the Street Commissioners." Appellants recite also in their chain of title another deed given by Beach to Aaron Gardner, dated November 14, 1835, conveying another portion of the 8-foot strip with an identical limitation. It is worthy of note that as late as 1853 deeds in appellant's chain of title carry the limitation recited in the Bolles deed, and that in 1860, 1863, 1887, and 1900, deeds of conveyance of the property were bargain and sale deeds and quitclaim deeds.

At the trial of the cause below, appellants objected to the admission in evidence of the Beach map. Appellants make no reference as to where this objection may be found in the state of case, nor do they set out the objection in precise language. We need not, therefore, consider the same. However, it may be' said that the Beach map was properly admitted into evidence.

Appellants contend that the trial court should have directed a verdict for plaintiffs on the issue of dedication, for the reasons that there was lacking on behalf of the defendants the requisite strict, cogent, and convincing evidence of dedication, and that plaintiff's proof of the practical construction of the status of the locus in quo by the respondent city, and by the alleged dedicators, was so conclusive of lack of intention to dedicate, that a verdict for defendant would have warranted being set aside. Appellants rely upon a statement in Soper v. Conly, 108 N.J.Eq. 370, 154 A. 852, taken from 18 C.J. 96. Upon appeal to this court reported in 107 N.J. Eq. 537, 153 A. 586, this language was not given express approval. The maps relied upon by respondent were proved to have platted the tracts of land of which the locus in quo was a part. Deeds of conveyance were made with reference to these maps. It was not necessary that the Holden map should have been filed in any public office of record to be admissible as evidence; the real question before the court below for decision was, What was the purpose of the owners of the land at the time the maps were made and the deeds executed and delivered? Was there the animus dedicandi? Keyport v. Freehold, etc., R. Co, 74 N.J.Law, 480, 65 A. 1035. The proofs below were sufficient to justify the trial court in its conclusion as to the intent to dedicate. The proof of the practical construction of the status of the locus in quo by the respondent city and by the alleged dedicators was in nowise inconsistent with a find of dedication. Such user of the premises by appellants and their predecessors in title as was had was not...