Soper v. Conly

• Decision Date: 27 June 1929
• Citation: 154 A. 852
• Parties: SOPER et al. v. CONLY et al.
• Court: New Jersey Court of Chancery

154 A. 852

SOPER et al.

v. CONLY et al.

Court of Chancery of New Jersey.

June 27, 1929.

Suit by Alexander C. Soper and others against James F. Conly and others.

Bill of complaint dismissed.

Decree affirmed in 153 A. 586, 107 N. J. Eq. 537.

Scammell, Knight & Reese and Scott Scammell, all of Trenton, Henry T. Stetson, of Orange, and Harry E. Newman, of Lakewood, for complainants.

Robert H. McCarter, of Newark, and Halsted H. Wainwright, of Manasquan, for defendant Lakewood Hotel & Land Ass'n.

Wilfred H. Jayne. Jr., of Lakewood, for defendants Township Committee Lakewood Tp. and others.

BERRY, Vice Chancellor.

This bill is filed by four citizens and taxpayers of the township of Lakewood, Ocean county, N. J., one of whom, Dr. MacMillan, was at the time of the filing of the bill a member of the township committee of that township, and one of whom, Thomas J. Buchanan, died between the date of the filing of the bill and the final hearing. The defendants are James F. Conly, Adam Finlay, Clayton C. Hurley, John H. Myers, the other members of the township committee on the date of the filing of the bill, the township committee of the township of Lakewood, and the Lakewood Hotel & Land Association. The bill seeks to enjoin the execution and performance of a proposed contract between the township of Lakewood and the Lakewood Hotel & Land Association, which was authorized by resolution of the township committee, and which contract provided for the purchase by the township from the land association of property in that township consisting of Lake Carasaljo and certain lands surrounding the lake for the sum of $200,000, with allowances to the township for surveys, title searches, and incidental expenses not exceeding $10,000, on the ground that such an expenditure by the township would be an unlawful diversion of public funds by the township committee and a fraud on the taxpayers. The gravamen of the bill is set forth in the seventeenth, eighteenth and nineteenth paragraphs thereof, and may be summarized as follows:

"17. That the agreement for the purchase of the property was entered into by the members of the Township Committee without a careful examination being made by them as to the rights of the inhabitants of the Township of Lakewood and the members of the general public to the use and enjoyment of Lake Carasaljo and the walks and drives surrounding it.

"18. That the Township Committee knew of the dedication of the property to the public use and that accordingly the purchase of the property constitutes an improper diversion of the funds of the Township of Lakewood and is and will be a fraud upon the taxpayers of the Township and to permit the Township Committee to carry out the agreement will be contrary to equity and good conscience.

"19. That if the Lake, the drives and paths surrounding it were so dedicated to public use, the remaining property embraced by the terms of the agreement is of no substantial value."

The bill contains no charge of willful fraud, collusion, or corruption on the part of the municipal authorities. The basis of the charge of fraud, shortly stated, is the allegation that the lake and all the lands and property the subject of the proposed contract have already been dedicated to public use by the defendant land association and its predecessors in title, and that the purchase of that property by the township would be, in effect, purchasing something which the township already owns by a right of dedication; or that at least such portions of the property as lie within the boundaries of Lake drive, lake paths, and Lake Carasaljo were subject to a public user, and that the payment of $200,000 for the remaining lands not subject to such user would be an unconscionable performance by the township committee, and one which this court should restrain. This allegation of fraud, of course, affords the only excuse for the filing of the bill in this court. Coast Co. v. Spring Lake, 56 N. J. Eq. 615, 36 A. 21; Jackson v. Newark, 53 N. J. Eq. 322, 31 A. 233; Berdan v. Passaic Valley Sewerage Commissioners, 82 N. J. Eq. 235, 88 A. 202, affirmed 83 N. J. Eq. 340, 91 A. 1067; Millville v. Board of Education, 100 N. J. Eq. 162, 134 A. 748. In the absence of fraud, and where the proofs fail to show that the price to be paid is so in excess of the value of the property to be acquired as to shock the conscience, equity has no jurisdiction. McKinley v. Chosen Freeholders, 29 N. J. Eq. 164; McCormick v. New Brunswick, 83 N. J. Eq. 1, 89 A. 1034; Watters v. Bayonne, 89 N. J. Eq. 384, 104 A. 770.

The allegations of fraud contained in the bill are based on the assertion, first, of an implied covenant as to user, arising from the fact that the land association and its predecessors in title, in developing the village of Lakewood and in making sales of its property, publicly advertised Lake Carasaljo and Lake drive and paths as attractions and inducements to purchasers of lots, and exhibited to such persons maps upon which the lake, drive, and paths were shown; and, second, upon the fact of a public 'easement in the lake, drive, and paths acquired by public user thereof for a period of over twenty years; and, third, upon actual dedication by the filing of maps upon which the lake, drive, and paths were delineated, and by conveyances of lands according to those maps and abutting on the lake and drive, one assertion being that upwards of 400 deeds of conveyance of lots out of the tract of land of which the lands here involved are part were made by reference to a map upon which Lake Carasaljo and Lake drive and paths were particularly shown.

The evidence submitted in this cause indicated that a large part of the lands which now constitute the town of Lakewood were owned by one Joseph Brick in about 1860, and the settlement there was originally known as Bergen Ironworks, afterwards as Bricksburg, and now Lakewood. A portion of the lands owned by Brick were conveyed by his heirs to the Bricksburg Land & Improvement Company about 1866. That company in 1870 conveyed a portion of its lands located on the south side of Lake Carasaljo to the American Roofing, Paving & Manufacturing Company, the name of which company was later changed to Bricksburg Manufacturing Company. The Bricksburg Manufacturing Company in April, 1871, mortgaged its lands to the Newark Savings Institution, which later foreclosed the mortgage and purchased the property at the sheriff's sale held pursuant to a decree of this court. That institution later, in 1880, conveyed the property to Kimball and Davis, who held the land until April, 1920, when they conveyed to Bricksburg Land & Improvement Company. In the meantime, Kimball and Davis had conveyed certain water power rights in Lake Carasaljo with certain limitations, and previous to that time the former owner had granted certain rights to the water company. On the same date that the Bricksburg Land & Improvement Company acquired title from Kimball and Davis, April 1, 1920, that company conveyed the tract, with certain exceptions, to the Carasaljo Land Company. These exceptions are quite important, but, without entering into detail as to them, it is sufficient to say that the exceptions included Lake drive and other portions of the land lying to the southward of Lake Carasaljo, and which are included in lands described in the contract the subject of this suit. In July, 1921, the Bricksburg Land & Improvement Company was merged with the defendant Lakewood Hotel & Land Association, and it was as a result of that merger that the defendant association acquired title to the remaining portion of the American Roofing, Paving & Manufacturing Company tract which was the subject of the foreclosure sale already referred to. The description of the property contained in the mortgage above referred to excepted certain lands described according to lot and block numbers as shown on map of the property of the Bricksburg Manufacturing Company. The same description is contained in the special master's deed. No authentic map of the property of the Bricksburg Manufacturing Company tract was put in evidence. A large map known as the "Beers" map, to which reference will hereafter be made, was offered in evidence, but excluded. Upon this map was superimposed what purported to be the Bricksburg Manufacturing Company map, but it was not offered in evidence except in conjunction with the "Beers" map.

The evidence claimed to indicate an implied covenant as to user consisted of advertisements by the defendant association and its predecessors in title and representations by its officers to the effect that the lake, drive, and paths were for the use of the public. As to the advertisements, they appeared in a newspaper published in Lakewood from 1871 to 1878. The files of this paper during that period were offered in evidence, and some were admitted. In these advertisements the natural advantages of the town, its healthful climate, convenient location, and other attractions were naturally emphasized, but there is nothing except a statement that "a public part is to be laid out with walks and avenues and will connect with the beautiful lake drive of two and a half miles in extent around Lake Carasaljo" which could form the basis of any implied covenant. In this respect this case differs from De Long v. Spring Lake & Sea Girt Co., 65 N. J. Law, 1, 47 A. 491, and Lennig v. Ocean City Association, 41 N. J. Eq. 606, 7 A. 491, 56 Am. Rep. 16, cited by counsel for complainant. In those cases there was a very definite representation from which such a covenant could be implied. Complainants contend that the words "a public park" in the advertisements refer to the land around the lakes, but I do not think so. There was a plot of ground specifically referred to in some of the deeds offered in evidence as a park, and evidently it was to that park that the advertisements referred; but, even if complainant's contention is correct, the...