Weger v. Inhabitants of Twp. of Delran

• Decision Date: 28 February 1898
• Citation: 61 N.J.L. 224,39 A. 730
• Parties: WEGER et al. v. INHABITANTS OF TOWNSHIP OF DELRAN.
• Court: New Jersey Supreme Court

39 A. 730

61 N.J.L. 224

WEGER et al.

v. INHABITANTS OF TOWNSHIP OF DELRAN.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1898.

(Syllabus by the Court.)

Error to supreme court.

Ejectment by the inhabitants of the township of Delran against Charles Theis Weger and another. A judgment for plaintiff was affirmed, and defendants bring error. Affirmed.

S. H. Grey, Atty. Gen., for plaintiffs in error.

Mark R. Sooy, for defendant in error.

MAGIE, C. J. The writ of error in this case has brought before us a judgment of the supreme court affirming a judgment of the Burlington circuit court in favor of the municipality which is the defendant in error. The record returned exhibits an action of ejectment in which the defendant in error was plaintiff and the plaintiffs in error were defendants. The land, the possession of which was in dispute, was a rectangular plot, lying within the boundaries of the township of Delran, in the county of Burlington. The plea interposed by plaintiffs in error was the general issue. By the bills of exception before us it appears that the issue thus joined was tried by the circuit judge without a jury, and by consent of the parties. It appeared in evidence before him that plaintiffs in error had acquired the legal title to the land in question by conveyances from the executors of one Samuel Bechtold, deceased, a former owner, under authority to sell conferred on the executors by the last will and testament of said Bechtold. The acquisition of such title drew to the owners the right of possession of the locus in quo unless the defendant in error established by evidence a right of possession superior to that of the owners of the fee. The bills of exception also show that defendant in error claimed a right of possession by reason of a dedication of the land to public use as a public square, or park, or pleasure ground, which dedication was claim ed to have been made by Samuel Bechtold long prior to his death. The question thus raised and questions incident to it were considered by the trial judge, who, upon the evidence before him, found (1) that Samuel Bechtold did dedicate the locus in quo to the use of the public; (2) that the persons under whom plaintiffs in error claim, and who were the purchasers from Bechtold's executors, were not bona fide purchasers of the locus in quo, without notice of such dedication; and (3) that defendant in error had power and authority to maintain the action of ejectment The circuit judge allowed and sealed exceptions taken to these findings, and the argument before us has been mainly directed to those exceptions.

It was first argued that there was no sufficient evidence to warrant the finding that Bechtold had thus dedicated the locus in quo. But this argument is based upon an erroneous view of the power of a court of review over findings of fact by a trial judge sitting without a jury. It is thoroughly settled that the weight and sufficiency of the evidence to support the finding cannot be considered on writ of error. If any evidence was presented capable of supporting it, the finding is as unassailable on error as the verdict of a jury would be. Bridge Co. v. Geisse, 38 N. J. Law, 39, 580; City of Elizabeth v. Hill, 39 N. J. Law, 555; Kalbfleisch v. Oil Co., 43 N. J. Law, 259; Blackford v. Gaslight Co., Id. 438; Mills v. Mott, 59 N. J. Law, 15, 34 Atl. 947. It is impossible to contend that there was no evidence before the trial judge in respect to dedication, for it appeared that about 1853 Bechtold had purchased a tract of land which included the locus in quo; that he had made a map of it, laying it off by streets into blocks; that he named it "Plan of Bechtold's Fourth Addition to the Town of Progress"; that all the blocks except...