| N.J. | Feb 28, 1923
The opinion of the court was delivered by
This action was brought to test the right of the defendant to maintain its railroad in the centre of a public street known as Philadelphia avenue, in the borough of Wildwood Ciest, in front of the property of the plaintiffs, who are the owners of a lot having a frontage on that avenne, beginning at the intersection thereof with Lotus road, and extending along the exterior line thereof, in a northeasterly direction, seventy feet from the said intersecting point.
The facts are not in dispute. A land improvement company, known as the Wildwood Crest Company, was the owner of a tract of land in Cape May county, which it laid out in streets, blocks and lots, according to a descriptive map, which it filed, and it sold the lots indicated on this map by a reference thereto. The plaintiffs were among the purchasers, and the property conveyed to them, and above referred to, was designated in the deea from the company as lots Nos. 1 and 2 of block Uo. 61 as shown on said map. At the time of the filing of the map there was delineated thereon parallel lines running through the centre of a part of Philadelphia avenue and marked “West Jersey and Seashore Railroad,” and a parallelogram abutting on the southerly of these lines marked “Railroad Station.”
Under the doctrine of Ayres v. Pennsylvania Railroad Co., 52 N. J. L. 405, the filing of the map and the conveyance of lots by reference thereon was a dedication, by the owner, of the land within the exterior lines of Philadelphia avenue to public use as a highway, subject, however, to the devotion to railroad uses of that part thereof covered by the indicated railroad right of way; and the conveyance by the dedicator to the plaintiffs of the lot on the corner of that avenue and Lotus road vested in the grantees title to the middle of the avenue, subject, however, to the railroad user. It follows, therefore,
The proofs show, however, that the defendant company has occupied with its tracks a greater portion of this avenue than was devoted to its uses by the Wildwood Crest Company; and this appears, without contradiction, by the testimony of the assistant to its division engineer, a witness called by the defendant, who stated upon the witness stand that the lines •indicating the railroad right of way as delineated on tire map, stop at a point about eighteen feet north of Lotus road, but that the railroad had in fact been constructed beyond this point and into Lotus road for a distance of about a foot and a half beyond the north line thereof.
As the right of the defendant company to occupy Philadelphia avenue with its tracks is rested solely upon its devotiop to railroad uses by the Wildwood Crest Company, and as thal right is only- co-extensive with the implied grant of the land company, the laying of its tracks, by the company, beyond the point delineated on "the map for a distance of eighteen feet in front of the plaintiffs’ property was without legal justification and was in violation of the plaintiffs’ property rights in the highway; and the verdict in favor of the defendant, which, by necessary implication, was based upon a finding that the defendant company was entitled to occupy Philadelphia avenue across the whole front of the plaintiffs’ lot, cannot be permitted to stand.
It is argued on behalf of the railroad company that, even if it was occupying any part of this street without legal justification, the plaintiffs are not damnified, because their title only extends to the exterior line of the highway and not to the middle line thereof, for the reason that, as appears from a reading of the conveyance to them the land granted to them is described as abutting upon the exterior line of the avenue, and is limited in quantity to six thousand three hundred feet, strict measure, that being the precise quantity of land contained within the boundary lines specified in the deed. It is
Tile rule to show cause will be made absolute.