86 N.J.L. 179 | N.J. | 1914
The opinion of the court was delivered by
This is an action of trespass based upon the claim that the defendant entered upon lands of the plaintiffs, and destroyed a fence erected thereon by them. The defendant justified his action because, as" he averred, the locus in quo which is known as French’s court, was a public highway, and the fence constituted an unlawful obstruction therein which interfered with his free use of the way.
The judgment under review was entered on a-verdict had at a second trial of this cause. At the first trial the same defence' was interposed, and the trial judge, considering that a dedication of the locus in quo to public use by a predecessor in title of the plaintiffs had been conclusively shown, directed a verdict in favor of the defendant. Upon review in this court the judgment entered pursuant'to such direction was reversed, this court holding that dedication did not, ipso facto, create a public highway; that there must be not only dedication by the owner, but acceptance of the dedication by the public, in order to create it; and that such acceptance might be shown either by formal action on the part of the representatives of the public having authority over highways, 'or ■by public user of the dedicated land. No evidence was offered on the trial showing formal acceptance by the public authorities, and whether or not there had been such a public user of the dedicated land as to constitute an acceptance was con- . sidered not to have been conclusively shown. Schmidt v. Spaeth, 82 N. J. L. 576.
When the case came on to be tried a second time the defendant, for the purpose of proving acceptance by formal action on the part of the representatives of the public having authority over highways in the city of Camden (the municipality in which French’s court is situated), showed that in
The trial court being in doubt as to the legal effect of the municipal action of 1909, in view of the subsequent action of common council in 1912, refused to direct a verdict in favor of the defendant, and left it to the jury to determine. The jury found in favor of the plaintiffs, and defendant appeals.
The principal ground upon which this appeal is rested is that the trial court erred in refusing to direct a verdict, the contention being that the action taken in 1909 by the street committee and its officer, subsequently ratified by common
The judgment under review will be reversed.
For affirmance — Hone.
For reversal — The Chancellor, Ciiiee Justice, Garrison, SwAYiZE, TRENCHARD, PARKER, BERGEN, KaLIHCH, Bogert, Vredenburgh, Wiitte, IIeprenhejmer, JJ. 12.