Emery, V. 0.
(after statement).
The substantial question of law -to be decided is the right of the complainants and of the defendant land company as against the defendant Crucible company under the agreement of 1901, to access over that portion of Cumberland street east of Fourth street, as laid down on the Gilbert map, to the “strip of land sixty feet in width, an extension of Cumberland street;” dedicated as a road across their respective lands. An objection was made in the answer of the steel company and the Hudson Railroad and Transportation Company, and repeated at the hearing, to the jurisdiction of this court to determine this disputed right, as being purely a legal right to be settled at law, and for the violation of which the remedy was legal and not equitable. The equitable jurisdiction to enforce by injunction the private rights of way arising to grantees from dedications of streets or roads is settled. Lennig v. Ocean City Association (Court of Errors and Appeals, 1886), 41 N. J. Eq. 606; Herold v. Columbia Investment and Real Estate Co. (Court of Errors and Appeals, 1907), 72 N. J. Eq. 857, 861. Injunctions welre granted in these cases on covenants for rights of passage in the streets, implied by reason of conveyances referring to the streets designated on the map. A right arising from a dedication of a street or road by express *19covenant is entitled to a similar equitable protection. And there is here an additional ground for equitable jurisdiction. So far as relates to the dedicated strip of sixty feet, the covenant and agreement “hereby dedicating” it as a road may be considered as an actual grant of an easement over the lands then owned by the respective parties, and not merely a covenant, if such construction is necessary to carry out the intention of the parties. Godd. Easem. (Bennett’s ed.) 108; Trustees v. Lynch, 70 N.Y. 440" court="NY" date_filed="1877-09-18" href="https://app.midpage.ai/document/trustees-of-columbia-college-v-lynch-3583417?utm_source=webapp" opinion_id="3583417">70 N. Y. 440, 448; Brewer v. Marshall, 18 N. J. Eq. 337, 345; S. C. on appeal, 19 N. J. Eq. 537, approving opinion of chancellor on this point (at p. 542) 10 Am. & Eng. Encycl. L. (2d ed.) 413. But so far as relates to any rights on Cumberland street itself from Fourth street for access to the extension, these rights cannot be in the nature of actual grants of easements over Cumberland street, because neither the steel company nor any other of the parties owned lands abutting on that portion of Cumberland street upon which the easement could be actually imposed by grant. Any rights over that portion of Cumberland street for access to the extension must, therefore, as between the parties to the agreement, arise as matters' purely of contract or estoppel under contract, and not of estate granted, and specific performance by injunction of such contract rights, if any, is the only adequate remedy. The obstruction of Cumberland street east of Fourth so plainly destroys or affects the existence or value of the road dedicated over the extension, that if such obstruction is a violation of contract rights arising under the agreement, equitable relief by injunction is the appropriate remedy.
As. to this portion of Cumberland street itself, the agreement by its recitals and covenants shows that the parties to the agreement intended that this portion should be considered as a way given by a public street for access to the dedicated strip. The first recital refers to the non-existence of public streets or highways on their several tracts, and the claim by all of the other parties of rights of way over the complainants’ lands embraced in the Preston tract. These private rights of way were claimed as arising partly by reason of the dedications of streets on the Preston tract, by the maps and otherwise, and as existing after *20the vacation of these streets. As appears by the record in the suit brought by the Young estate against the Pennsylvania Railroad Company, these claims of right of way relate to several streets laid out in the Preston tract other than Cumberland street. The second recital was most important as declaring the scope and purpose of the whole agreement, and, in my judgment, reached' to the very point now in question. This recited that it was for the interest of all parties “that some recognized way to and through such properties be established, and that all claims of the parties to private ways over such properties, or any of them, be extinguished.” As to the purpose and scope of the dedication, this recital shows an intention to establish “some recognized way to," as well as through their properties, and, in view of the actual releases of private ways subsequently made in the agreement itself, carrying out that purpose of the recital, the other declared purpose, viz., the establishment of a recognized way, must be considered either as a contract of the parties, that as between them a recognized wajr to the properties was established by the agreement, or as an estoppel against thereafter denying that the way to the properties established by the agreement was as between them a recognized way. If the recital has the effect of such estoppel arising out of the contract, the continued existence of the recognized way to the properties arising from estoppel may be protected, although none of the parties against whom the estoppel arises at the time of the agreement owned the lands to which the estoppel applies. In Ocean City Hotel, &c., Co. v. Sooy (Court of Errors and Appeals, 1909), 77 N. J. Law 527, a conveyance delineating a street and referring to it as a boundary, while inoperative as a dedication because the grantor did not own the street, was operative between the parties as an estoppel to deny the existence of the street.
The covenant of dedication following this recital not only did not limit or restrict this declaration of its purpose, but confirmed, and, I think, adopted it, and by the following provisions : Hirst. The dedication was expressed to be “in consideration of the premises,” thereby including and reaffirming the general purpose of the previous recital, as establislmrg a way to the_ properties. Second. The express and formal dedication itself in the *21agreement is, “a strip of land sixty feet in width, cm extension of Cumberland street, across the lands of the parties be and the same is hereby dedicated and appropriated as a road.”
There is in the dedication itself no further express indication of its purpose, but the purposes declared in the recital, in consideration of which the dedication was made, must be considered as operative, and as defining between the parties a special purpose of the dedication, viz., to establish a recognized way to the premises, and the dedication itself “as an extension of Cumberland stréet,” was an express reference to a recognized way, and the only recognized way which led to the premises through which the dedicated strip ran.
I consider that by the dedicating clause, read in connection, as it must be, with the recital, which was the declaration of its purpose, the dedication as made should be taken, so- far as the parties are concerned, as if made in this form, viz.:
“A strip of land sixty feet in width, an extension of Cumberland street easterly across the said lands of the parties hereto, be and the same is hereby dedicated and appropriated as a road (to the end), that some recognized way to and through such properties may be established.” '
The form or place in this agreement in which its purpose appears is immaterial, and where the purpose, as here, plainly appears by recital, the terms of the dedication, whether it be considered a grant of an easement over the land they owned or as a contract, must be construed as affected by it. The references in the agreement to Cumberland street in the description of the strip following the dedication, further confirm this construction of the declaration, and show that for the purposes of the agreement and as between the parties, Cumberland street east of Fourth to the boundary line of the Gilbert and Preston tracts is to be the recognized way to the properties. The strip dedicated begins east of Fourth street at the end of Cumberland street as laid out on the Gilbert map; thence it runs “easterly between the northerly and southerly lines of Cumberland street produced across lands of the parties.” Then, as specially indicating the status of Cumberland street and fixing its lines east of Fourth street for the purposes of the agreement, it is said that *22“Cumberland street, of ■which the land above described (the sixty-foot strip) is an extension, is shown on the Gilbert map and the official town of Harrison ma.p.” * * * It is sixty feet in width and crosses Fourth street at right angles “extending easterly to the boundary line of the Gilbert and Preston tracts.” The definite location of Fourth and Cumberland streets, for the purposes of this agreement, is fixed by reference to the distance of their northeast corner two thousand and twenty feet from a fixed monument, New Jersey Kailroad avenue, on the north. These descriptions and locations show that the parties for the purpose of establishing some recognized way to and through their lands adopted a single recognized way. The recognition of this portion of Cumberland street in fixed location and lines as an existing public street as far as the boundary, and the explicit extension of the street by dedication over their lands, established for every one of the parties this “single recognized way to and through” their properties, which it was their object to establish. And it is only by such recognition of Cumberland street, as a way in connection with the dedication, that such way could be established by the dedication. At the time of the execution of the agreement, Cumberland street east of Fourth, as laid down on either of these maps, was not graded, nor could it, in its then condition, be used at all for vehicular travel. But the right of wajr over this portion of Cumberland street, if it exist by estoppel, or otherwise, under the agreement, must, as it now seems to me, for the purposes of its exercise and enjoyment, and so far as these parties are concerned, be considered as if it stood on the legal basis of easement granted on their own lands in the dedicated strip. On this strip the agreement expressly provided for filling and grading, but this did not extend to Cumberland street. As to the way established by the agreement over this portion of this street, the right to grade it, if necessary for the use of the lands of the parties through which the road was dedicated, the right to enter, repair and grade, as between the parties, must be the ordinary and recognized right of a dominant owner. He must keep the way in repair at his own expense and may enter on the servient *23tenement for that purpose. Godd. Easem. (Bennett’s ed.) 346. Whether this portion of the street has been accepted by the town as a public street admits of question. The town official map affords some evidence of acceptance. Vreeland v. Torrey (Chancellor Runyon, 1881), 34 N. J. Eq. 312, 313; but in view of the act of 1888 (P. L. 1888 p. 178; 4 Comp. Stat. p. 4604), authorizing the vacation of dedicated streets, whether accepted or not, the subsequent vacation or proceedings to this part of Cumberland street do not of themselves imply acceptance. No other acts of the town are shown as bearing on the question of acceptance of this portion as a public street, and apparently the town authorities, by allowing the continuance of the barrier, are acting as if this part of the street were not public. And certainly the defendants, who have obstructed the way established by the agreement, can, as against the parties, have no right to continue them, merely on the ground that in doing so they also obstruct the public street which was the way established.
This agreement, in my judgment, estops all the parties dedicating the road over their lands as an extension of Cumberland street with the intention of establishing a recognized way to their lands from Fourth street, from denying that Cumberland street east of Fourth street to the boundary line of the tracts, and for the whole width thereof, is a way to the properties over which the strip was dedicated as an extension.
Should this construction of the agreement, giving rights of way by estoppel over Cumberland street exist to the boundary, not be correct, and should it be considered that the agreement of dedication gave rights only over the dedicated strip, it would still seem that the complainants and the land company are not barred from equitable relief. For it is actionable and a misfeasance for the grantor of an easement to subsequently willfully annul or avoid his own grant by obstructing its use. Godd. Easem. (Bennett’s ed.) 443. The obstruction in this case practically destroys and annuls the dedication of the strip itself. And for obstructions of a way made by others, but with the knowledge and assent of the servient owner, the dominant owner has a remedy against the servient owner. Ibid., citing Dennis v. Sipperly, 17 Hun 69.
*24The complainants, in my judgment, have additional rights by estoppel against the steel company, by reason of the subsequent deeds to that company. These deeds (two in number) together conveyed all of the complainants’ lands over' which the sixty-foot strip was dedicated, lying between the easterly boundary of the Gilbert and Preston tracts, and the steel company’s own lands lying within the dedicated road, and abutting about one thousand two hundred feet on the northerly side of the extension. These lands of the steel company were part of the Gilbert tract, and on that map appeared as included in a .portion of Cumberland street detached from the other portions of that street. But, although thus detached, the grantees of this detached portion, and of the lands abutting thereon on the north, were as grantees of the Gilbert tract, at the time of the agreement, entitled to the benefit of Cumberland street, as laid out on the Gilbert map, including especially the portion thereof east of Fourth, and to their easement over this portion by reason of this dedication by this map. By the two conveyances to the steel company, it became the owner of the lands connecting the detached portions of Cumberland street as dedicated on the map, and thus, as owner of the lands in the dedicated strip, and which were covered by Cumberland street on the Gilbert map, became entitled, under the Gilbert title and. the agreement of 1901, to private rights of passage from its lands to Fourth street, and it has these rights of passage to Fourth street superior to the Hudson-transportation company’s title, which was subject to all the dedications by the Gilbert' map. By these deeds this valuable private right of continuous passage from its lands abutting on the extension of Cumberland street to Fourth street became fixed, and this circumstance is entitled to weight in considering the effect of these subsequent deeds. The first deed, dated June 22d, 1910, conveying about three hundred feet on the northerly line of the extension, was described as beginning at a point in “the northerly line of Cumberland street (sixty feet wide) as the said Cumberland street is extended by the agreement of May 17th, 1901;” the third course runs “to a point in the northerly line of Cumberland street extended as aforesaid; thence along the said northerly line of said street extended to the beginning.” *25The second tract, conveyed November 13th, 1911, is described as beginning at a point
“in the north line of Cumberland street as laid out on said (Gilbert) map and mentioned in the agreement of May 17th, 1901, which point was two hundred and forty-five three-hundredths feet measured eastwardly along the northerly line of the said Cumberland street from its intersection with the easterly line of Fourth street.”
These deeds plainly proceed on the basis that, as'between the parties thereto, and for the purposes thereof, Cumberland street is a continuous street from Fourth street to the lands of the steel company included in the agreement of 1901. The grantors manifestly would be estopped from denying that the grantees had the right of way from the premises conveyed over this portion of Cumberland street, and the grantees by the acceptance of the deed with its express references to Cumberland street as a street from Fourth street and over .the lands conveyed, affirmed the agreement of 1901, as intended to make of Cumberland street east from Fourth a public street to be extended. They are also, in my judgment, estopped from denying this effect of the deed and its acceptance, and that Cumberland street east of Fourth street is a public street.
In the absence of a direct covenant that Cumberland street east of Fourth was a public street and should be continued as such, the reference to it, in the agreement or in the deeds, by the recitals or description, as a public street, intended for the purposes of the agreement or deeds to be part of a perpetual continuous recognized way to their lands across which tire strip was dedicated, such mutual covenant by implication cannot be held to have arisen between the parties, making each liable to the other for damages as on a covenant, either on the non-existence or the subsequent vacation of this portion of the street. These references, by -recitals or description, should not be held to operate further tiran as estoppels arising under the agreement and deeds as to all the parties, and those claiming under them, to deny the existence of this portion as a street or way to the dedicated strip, • or in anjr manner interfering to obstruct the other parties to the agreement in the use of it for the purposes *26of the agreement. This distinction between estoppel and implied covenant is taken by some courts, even where the lands as to which the estoppel is enforced belong to the grantor. 8 Am. & Eng. Encycl. L. (2d ed.) 63; Howe v. Alger (Mass., 1862), 4 Allen 206, 211. And where the lands are not owned by the grantor or covenantor, the right to relief must clearly, I think, be based on estoppel. This estoppel will • in the present case prevent the steel company from doing or alleging anything contrary to the tenor and effect of the agreement and deeds in this respect, and from doing anything, either itself or through others over whose action in reference thereto it has control, to obstruct the enjoyment of the street or way for the purposes of the agreement and deeds.
The bill is filed to protect and enforce complainants’ rights arising and claimed under the agreement and deeds, but at the hearing they also claimed a right to a removal of the obstruction, by mandatory injunction, upon the ground that it was the obstruction of a public way from which they suffered special loss or damage, and that although the common nuisance was indictable they were, by reason of this special damage, entitled to remedy by action, including relief by injunction. The New Jersey decisions relied on to support the claim are cases in the law courts in which such actions for special damages were sustained. In Stevens v. Paterson and Newark Railroad Co. (Court of Errors and Appeals, 1870), 34 N. J. Law 532, 553, the access of a riparian owner to a navigable river was obstructed by the construction of a railroad on the shore belonging to the state and without any authority from tire state. In Ryerson v. Morris Canal and Banking Co. (Supreme Court, 1903), 69 N. J. Law 505, the owner of three different farms located at considerable distances from each other, on the same highway, was held, on the facts stated in the declaration, to have sustained a special and peculiar damage in passing from one farm to the others, by the non-repair of a bridge on the highway, and to be entitled to an action for the non-repair if defendants were bound to repair. Mr. Justice Pitney, delivering the opinion of the court, says (at p. 505) that “in order to maintain the action plaintiff *27must have sustained some special damage peculiar to himself, beyond that suffered by the rest of the public entitled to use the tvay, and that it is sometimes said that the plaintiff’s injury should be, not only greater in amount, but different in kind from that suffered by citizens in general.” In decisions previous to this latter case, the right to relief by injunction for removal of nuisances to highways Avas denied to complainants who were abutting owners and Avhose access to the highway was cut off, upon the ground that the right to the highway Avhich complainant enjoyed was only a right as one of the public, and that his injury Avas not different in character from that which every other citizen sustained. H. B. Anthony Shoe Co. v. West Jersey Railroad Co. (Mr. Justice Van Syckel, Court of Errors and Appeals, 1898), 57 N. J. Eq. 607, 617, and Mr. Justice Garrison (concurring) says "(at p. 61:9) that it is not seen how the public right can be draAvn in question in a suit to which no one representing the public or eA'en the municipality is a party. In Young v. Pennsylvania Railroad Co. (Supreme Court, 1905), 72 N. J. Law 94, this decision of the appellate court Avas held to establish the principle (suggested by Mr. Justice Pitney in the earlier Ryerson Case, supra, as the ground of some decisions) that the injury must be different in character from that of the public, in order to be redressed by a private action for damages, and such right was denied to the plaintiff where a street dedicated by the defendant had been obstructed by them. In vieAv of the later decisions, both in the court of errors and appeals and the supreme court, the relief by injunction against obstruction of a public street cannot be granted in this ease for two reasons— first, because the proof that Cumberland street east of .Fourth has been accepted by the municipality as a public street which it is obliged to repair for public passage is not sufficient. Where an oAvner has dedicated a street over his lands, he is estopped from retracting his dedication, and the public right at any time to appropriate’the street dedicated, Avhen required, can only be released by the legislature, or the municipality under its authority. Hoboken Land and Improvement Co. (Court of Errors and Appeals, 1873), 36 N. J. Law 540, 549; McAndrews, *28&c., Co. v. Camden (Court of Errors and Appeals, 1910), 78 N. J. Eq. 244, 248. But until there is an acceptance of the street by some municipal act, or by public usage, the public acquire no rights therein, and is subject to no duties by reason of the dedieátion. Ibid. and Atlantic and Suburban Railway Co. v. State Board (Supreme Court, 1910), 80 N. J. Law 83. No public usage of this portion of Cumberland street has been shown, nor was vehicular travel ever practicable since Fourth street was graded above it. Tinder these circumstances, the adoption of this portion on the map for taxing or city purposes does not seem such an acceptance as to impose on it the duty of repair for public travel. Proceedings to vacate under the act of 1888 do not imply acceptance. In the second place, I am inclined to concur in the view of Messrs. Justices Garrison, Dixon and Collins, in the Anthony Shoe Co. Case, supra, 57 N. J. Eq. 619, that where public right is fairly drawn in question, and is to be decided, the public or the municipality must be a party to the proceeding. On an indictment or information by the attorney-general the public is the formal party asserting the right and the status of the street as a public street is settled finally against all parties. Whether if the town of Harrison had been made party defendant to this bill as uniting in or allowing the obstruction of a public street, the obstruction of a public street if denied could be tried and relief by injunction granted, is not a matter for decision.
The case is decided solely on the rights of complainants and the land company to injunction under the agreements and deeds, and the form of injunction will be settled.