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Osterweil v. City of Newark

Decided: January 31, 1936.


On appeal from the Essex County Circuit Court.

For the appellants, Stein & Stern (S. Arthur Stern and Milton B. Conford, of counsel).

For the respondent, Frank A. Boettner, corporation counsel (Raymond Schroeder, assistant corporation counsel, of counsel).


The opinion of the court was delivered by

RAFFERTY, J. This is an appeal from a judgment for the defendant-respondent in an action of ejectment rendered in the Essex County Circuit Court. The cause was tried by the Circuit Court judge, sitting, by stipulation of the parties, without a jury.

The question involved is as to the right of possession of a strip of land eight feet in width by approximately two hundred and fifty-eight feet in length, lying northerly of and contiguous to the northerly line of the old Morris canal and easterly of Cherry street in the city of Newark.

The claim of appellant is based upon an alleged record title of seventy-one years. The defense of the respondent city rests upon a dedication in 1830, a rededication in 1836, used by the public for a long period of years, and acceptance of the dedication and the rededication by ordinance of the city of Newark in 1928.

The common source of the claimed title of each of the parties is found in George Holden and Henry Holden by virtue of a deed dated and recorded in the clerk's office of the county of Essex on November 30th, 1824. There was introduced into evidence a map referred to as the "Holden map" in which the premises conveyed to Holden is mapped out into eighty-eight lots expressly bounded and containing express measurements. This map contains also references to the Morris canal and to certain streets, more particularly Canal street. Morris canal is indicated as running through Canal street. Northerly of Morris canal this street is indicated to be of the width of twenty-five feet. For some distance lengthwise of Canal street and northerly of the canal a line parallel to the northerly line of the canal is drawn, which line at a distance of approximately three hundred and ninety feet easterly of Mulberry street appears to fade out rather than discontinue and again seems to reappear farther easterly on the map. It is contended for appellant that assuming dedication by the map, the strip of land between the parallel lines, claimed to be eight feet, was reserved from the dedication and it is with respect to this strip of land, dominion over which has been asserted by the city, that appellant seeks a judgment in ejectment against the city. Holden sold certain of the lots so mapped with reference to the map. Thereafter Holden sold a portion of the premises to one Beach who mapped his holdings, setting out the same by lots and blocks and showing the disputed premises as Canal street but without reference to the parallel line indicated on the Holden map.

The Beach map was filed in the office of the clerk of Essex county of March 23d, 1836. Lots were sold by Beach with reference to his map. The Holden map does not appear to have been filed.

In the bill of particulars furnished to respondent by appellants and placed in evidence in the court below, appellants, in making out their claim of title to the premises, recite in the second item thereof the Holden map. Appellants recite also a bargain and sale deed from Beach to Bolles, dated November 14th, 1835, which purports to convey part of the eight-foot strip in question, in which deed it is recited that the grantee, his heirs, &c., are "to have the exclusive privileges of occupying the said strip in such manner as shall be permitted to others owning lots fronting on Canal street [referring to lots shown on Beach map] for the purpose of storing wood, coal and other articles thereon in such way as shall be permitted by the street commissioners." Appellants recite also in their chain of title another deed given by Beach to Aaron Gardner, dated November 14th, 1835, conveying another portion of the eight-foot strip with an identical limitation. It is worthy of note that as late as 1853 deeds in appellant's chain of title carry the limitation recited in the Bolles deed and that in 1860, 1863, 1887 and 1900, deeds of conveyance of the property were bargain and sale deeds and quit-claim deeds.

At the trial of the cause below appellants objected to the admission in evidence of the Beach map. Appellants make no reference as to where this objection may be found in the state of case, nor do they set out the objection in precise language. We need not, therefore, consider the same. However, it may be said that the Beach map was properly admitted into evidence.

Appellants contend that the trial court should have directed a verdict for plaintiffs on the issue of dedication, for the reasons that there was lacking on behalf of the defendants the requisite strict, cogent and convincing evidence of dedication and that plaintiff's proof of the practical construction of the status of the locus in quo by the respondent city, and by the alleged dedicators, was ...

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