72 N.J. Eq. 326 | New York Court of Chancery | 1907
The elevated railway of defendant is being constructed pursuant to the provisions of the act of March 20th, 1901 (P. L. 1901 p. 116), which act authorizes a city to enter into a contract with a railroad company to change or elevate its road, and for that purpose to vacate, change the grade of, or alter the lines of streets. Pursuant to that statute contracts were made and ordinances passed by the city of Camden authorizing the work now in progress. Among the ordinances passed for the purpose was one vacating that portion of Cherry street now in question. Defendant is the owner of the property on either side of Cherry street abutting the part vacated.
The claim of complainant is based upon the theory that the vacation of the portion of Cherry street in question is, in legal effect, no more than a vacation of the public rights in the part of the street vacated, and that there still remains in the property owners on other parts of the street—and especially property owners in the same block—private rights in the part vacated
“Whenever a dedication of a public highway is effected—as it usually is—by means of a conveyance to private persons by reference to a proposed street over other lands of the grantor, the private rights of the several grantees precede the public right, and are the source from which the public right springs. By such conveyance the grantees are regarded as purchasers by implied covenant of the right to the use of the street as a means of passage to and from their premises, as appurtenant to the premises granted, and this private right of way in the grantees is wholly distinct from and independent of the right of passage to be acquired by the public.”
If it were necessary in this case to determine whether private rights acquired in this manner survive after the street has been accepted by a municipality and thereafter vacated, I should favor the view that the implied covenants from which these rights emanate relate only to the period of time between the original act of dedication and its consummation arising from the acceptance by the municipality; that the implied covenants contemplate not only the probable future acceptance by the municipality, but also contemplate the surrender of entire dominion and control to the municipality for the public welfare when such dedication shall have been consummated by public acceptance.But this view is not essential to the proper disposition of the present application, for this court has no jurisdiction to award the relief sought unless the legal right on which complainant rests his claim is, as a matter of law, wholly settled. To entitle complainant to the writ he seeks he must have demonstrated that, on the undisputed facts of this case, and according to the established law of this state, he has the private right which he claims in that part of Cherry street_ which has been vacated. Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416; Outcalt v. Helme, 42 N. J. Eq. (15 Stew.) 665; Todd v. Slaats, 60 N. J. Eq. (15 Dick.) 507.
“The precise question, then, which this case presents is this: Is it settled, as a matter of law in this state, that if any part of a public street is, at any time subsequent to the date of a conveyance of land abutting on it, abandoned or surrendered, the grantee named in such conveyance takes, by implied grant or covenant, a private right of way over that part of the street in which the public right has been extinguished? I know of no case decided by a superior court in this state which so discloses the law. None was cited on the argument of the motion. The question is one on which the courts of sister states are at variance.”
In the present case it does not clearly appear that complainant’s predecessor in title purchased, by reference to Cherry street, at a time prior to that street becoming a public street; but the averment is made that complainant’s predecessor in title and the other owners on that street widened the street by vacating ten feet of their respective fronts, thus making the several properties more valuable, and that by reason of that fact complainant was obliged to pay an increased price for his property. In Kean v. Elizabeth, 54 N. J. Law (25 Vr.) 462, the claim was made by prosecutrix that when the street on which she owned was laid out she was assessed for benefits, and on that fact she based a claim to a vested right in the continued existence of the street, and contested the vacation of a portion of the street distant from her property. The right there asserted somewhat resembles the claim here asserted, based on the widening of the street at complainant’s expense. The view entertained by the supreme court was that the damages complained of by prosecutrix, though greater in degree, were not different in kind from that of any other member of the community who would have had occasion to pass over the vacated highway.
Another ground exists on which the relief prayed should be denied. In Dodge v. Pennsylvania Railroad Co., supra, the
The motion for an injunction will be denied.