77 N.J.L. 527 | N.J. | 1909
The opinion of the court was delivered by
This is an action of ejectment for a tract of land in Ocean City, bounded, by the middle line of Atlantic avenue on the northwest, by the Atlantic ocean on the southeast, by the middle line of Seventh street on the southwest and
The plaintiff in error argues that the first portion of the charge was erroneous for the reason that both parties are es-topped by the map and by the reference in the Mathews deeds to Atlantic avenue as a boundary. That they are es-topped to some extent is conceded by the defendant in error, for he argues that the plaintiff in error is estopped to deny that Atlantic avenue existed as a street at that point seventy feet in width. The issue between the parties, therefore, is the extent to which the estoppel is to be carried. It is essential for the plaintiff in error, who is the plaintiff in ejectment, to establish a title to the locus in quo, and the exact question presented, therefore, is whether the conveyance to Mathews, by reference to the map and to Atlantic avenue as a boundary, is conclusive proof as between the parties that at that time the plaintiff had title to the soil covered by Atlantic avenue. We think that such a conclusion does not necessarily follow. It may well be that at the time of these conveyances the whole of Atlantic avenue was under the waters of the ocean, and therefore the property of the state. This would not prevent the parties to those conveyances from delineating such a street upon the map and referring to it as a boundary, and while these facts could not effect a dedication of the state’s land, they would operate by way of estoppel as against the parties to the conveyances, so that if the ocean receded the parties could not deny the dedication. The principle is the same that was established in Jersey City v. Morris Canal and Banking Co., 1 Beas. 547, and applied in Hoboken Land and Improvement
The trial judge properly, therefore, charged in accordance with the rule laid down in the case last cited. We think, however, that he failed to give to the map the force as evidence to which under that case it is entitled. Although the map and the deeds are not conclusive as to the line of the ocean in 1880 and 1882, they are evidence that at the time the map was filed the line of the ocean did not reach the lots conveyed to Mathews, and the lines delineated upon the map of 1883 are evidence that at that time no change had occurred sufficient to bring the ocean within the line of Atlantic avenue. We said in the Shriver case, referring to the lines upon this map, that it appeared there was a considerable space of undivided land lying between that portion of the association’s property which was then in dispute and the Atlantic ocean, and that Ocean avenue was delineated on the map as practically parallel with and some distance from, the ocean, and we added that the map of 1883 showed a line of high water in 1882 located two
Such a retrial will be necessary for the reason that the trial judge erred in the second branch of the charge above set forth. The description of the lots conveyed to Mathews bounds them upon the northwesterly line of Atlantic avenue. If those deeds conveyed any land southeast of that line and within the boundaries of Atlantic avenue, it is only by virtue of the rule which extends the bounds of a grant of land abutting upon a public street. The ordinary rule in such a case is that established in Salter v. Jonas, 10 Vroom 469, but that rule is a rule of construction only. Chief Justice Beasley was careful to say: “The particular words should, in such transactions, be controlled and limited by the manifest intention which is unmistakably displayed in the nature of the affair and the situation of the parties. When the conditions of the case are altered, as if the vendor should, in a given case, have an apparent interest to reserve to himself the parcel of street in question, a different rule of interpretation might become proper.” The rule adopted by the trial judge went farther than was justified by the decision in Salter v. Jonas, for he extended the grant beyond the middle line of the actual street as it was in case the high-water line came west of the southeasterly line of the avenue, and he fixed the southeasterly boundary of the Mathews grant as a line thirty-five feet southeast of the line given by the deed. It has been held in the Supreme Court of the United States, that where the street is actually existing is narrower than as delineated upon the map, the grant can only be extended to the centre line as actually existing. Banks v. Ogden, 2 Wall. 57. This rule has, in addition to the great
As the ease must be retried, we think it well to call attention to two minor matters. The trial judge charged the jury that the plaintiff was bound by the statements of the Ocean City Association respecting the title, made while the Ocean City Association was the owner of the land. No doubt those statements, if contrary to the interest of the Ocean City Association, were admissible in evidence against its grantee, but it was an inadvertence to charge that the plaintiff was bound thereby. The judge also allowed testimony, with reference to a survey and return made by the board of proprietors of West Jersey, that the surveyors had the right to extend the surveys, and that it was a custom in making surveys where the land was bounded by high water to so extend them, and that the board of proprietors had knowledge of such extensions at the time they granted the survey or granted the patent to the land. This evidence was offered, as stated by the brief of the defendant in error, to meet an attack made by the plaintiff upon a return made by one Haines, apparently for the purpose of showing that that return which had been offered in evidence by the defendants themselves was not entirely accurate. We think this evidence was not admissible.
The judgment must be reversed and the record remitted for a new trial.
For affirmance—None.