95 N.J.L. 327 | N.J. | 1921
The opinion of the court was delivered bjr
We gather from the briefs of counsel that application for this writ was made, in the first instance, to 'the Chief Justice, and that allocatur was denied by him. Prosecutors have thereupon come to the court in banc, following the practice recognized in such cases as Key v. Paul, 61 N. J. L. 133. Defendants object that that decision is not applicable on the ground that the allowance of a writ of certiorari is discretionary, and that Ivey v. Paul excludes that class of cases; but we think they have mistaken the purport of that decision. The opinion says that when the motion appeals merely to the discretion of the judge and does not involve the substantial rights of the parties, the court will usually not review his action.
' In the present case the question is whether the prosecutors have a substantial right which would be affected by the refusal to allow, a writ; and as their claim is that the defendants have undertaken to'take land or an easement in land belonging to them' without making any compensation whatever for the same, it is plain that if they are entitled to compensation, as the}’- say they are, a substantial right has been affected. Hardly a term passes in which no application is made to the court in banc for the award of a certiorari after the refusal of an allocatur by a single judge; the practice is firmly settled.
The next objection to the allowance of the writ as a matter of practice is that the Chief Justice, in entertaining the application, was sitting, under the statute, as the Supreme Court. But there .is nothing at all in the case before us to indicate this. So far as we can gather from the briefs, the Chief Justice made a rule to show cause returnable before himself why a writ of certiorari should not be allowed; and at or after the return of the rale concluded to deny the allocatur and, accordingly, discharged the rule. This also is
The cases cited by the defendants such as Dubelbeiss v. West Hoboken, 81 N. J. L. 98, are cases where certiorari was heard on final hearing and after allowance under section 5 of the Certiorari act. Comp. Stat., p. 403. The third point of practice urged against the allowance of the writ is that after the award was made and which award provided that the prosecutors were not entitled to any compensation for the appropriation of their land as a public street, they appealed the matter to the Circuit Court of the county of Essex, and that appeal is still pending. As to this our view is that the appeal lo the Circuit Court is normally upon the question of how much damages the prosecutors are entitled to and not, as in the present case, as to whether they are entitled to any damages at all, or are barred, as the defendants claim, by dedication of the lands taken.
We come, therefore, to the merits of the controversy. The ground on which all compensation was refused to the prosecutors by the commissioners for the municipality was that they, or those under whom they claim, had some years since dedicated the lands lying within the lines of the new: street called Fifth street to the public use, and that in such case they are not entitled to any compensation when the public accepts the dedication and undertakes to open the street. This is the rule settled by the leading case, among others, of Clark v. Elizabeth, 37 N. J. L. 120, 126; affirmed, 40 Id. 172. If these lands were, in fact, legally dedicated and accepted, there should be no allocatur.
The fact of dedication appears to be perfectly clear upon the uncontradicted affidavits in the case, the lands taken consisting of a strip fifty feet wide and about four hundred and twenty-five feet long, running northwesterly, substantially at right angles between Prospect street on the southeast and Academy street on the northwest, through a considerable
In 1879, Gardner and wife conveyed to William McCalluih a lot exactly opposite the foregoing on the easterly corner of Fifth and Academy streets by substantially the following-description: “Beginning at the easterly corner of Fifth and Academy ’streets; thence northeasterly along Academy street two’ hundred and fifty feet;' thence' southeasterly parallel with''Fifth ’street' one hundred - and .fifty feet; thence sorl'th-wletteidy- parallel with Acaderiiy streét two hundred and fifty
On December 24th, of the same year, Mr. and Mrs. Gardner conveyed to Sarah J. Gardner, probably their daughter or other relative, all, the lands in the block between Fourth, Fifth, Academy and Prospect streets not theretofore conveyed by them to outside parties, and the description runs, for one hundred and thirty feet northwesterly along the northeasterly side of Fifth street to the southerly corner of the MeCallum lot. There is, therefore, unequivocal recognition of Fifth street along its northeasterly line for two hundred and eighty feet from Academy street, leaving unaccounted for only about one hundred and forty feet between the end of this two hundred and eighty-foot line and Prospect street.
The next year, Sarah J. Gardner conveyed two tracts to Catherine A. Gardner, wife of Charles E. Gardner, the first tract being called "Residence Prospect Street, Fourth Street, Academy Street and Fifth Street lots.” This tract is described in the same terms as the last preceding deed to Sarah J. Gardner. The next tract is called "Fifth, Academy and Prospect street lots, beginning at the easterly corner of Emriia ('. Gardner lot on the southwesterly side of Fifth Street, thence with said side of said street south 50 degrees 15 minutes, cast 27(1 feet more or less to the northwesterly side of Prospect Street;” thence with Prospect street southwesterly and northwesterly and hack by various courses to the beginning. It appears, therefore, that those last deeds embrace the entire frontage on the southwesterly side of Fifth street from Academy street to Prospect street.
The law applicable to a situation like this is not in doubt in this state, and we deem it unnecessary to multiply citations of the cases. Lt is sufficient for present purposes to cite the ease of the City of Camden v. McAndrews & Forbes Co., 85 N. J. L. 260, decided by the Court of Errors and Appeals in 1913. In that case several phases of the doctrine of dedication were discussed as, for example, the making and filing of a plat or map by an owner with streets laid out thereon, the making of deeds by an owner hounded by or
Applying this rule, and noting once more .that deeds conveying lands bounded by the lines of Fifth street have referred to Fifth street as apparently a public highway without any reservations for its entire length on the southwesterly side and for two-thirds of its length on the northeasterly side, there seems to be no debatable question but that under the .decisions of the courts of this state, Fifth street was thereby irrevocably dedicated for public use as a highway between Academy street and Prospect street.
But the prosecutors claim that assuming an original dedication, the rights of the public to take advantage of it have been lost. Counsel frankly admits, to use the language of his.brief, that where there has been an actual dedication, it may be accepted by the public at any time and that mere delay, however long, does not impair the .right; and it does not seem to be disputed that the resolution or ordinance of the village of South Orange, whatever the municipal action may have been, for the taking of the land within the lines of Fifth street as a public highway, operated as an acceptance by the public so as to make the dedication complete. It is said that the action of the municipality in 1905 amounted to a declination to take the land and so brought the case within the lines of the leading case of Newark v. Pennsylvania Rail
The last point urged for the prosecutors is based upon the common law rule of ownership by an abutting owner of the fee to the centre of the highway. The fee of f lie abutting
The allocaiur will, therefore, be denied.