of any road or portion thereof by any county or under the control of any Board of Chosen Freeholders as a county road, and vesting jurisdiction over and the responsibility for the construction, reconstruction, repair and maintenance thereof in the governing body of the municipality wherein the same shall lie, and secondly, the complete vacation and abandonment of such road, but not until interested parties have been notified of a hearing thereon. It appears from the defendant's brief that the action of the Board of Chosen Freeholders of the County of Monmouth by its resolution of September 6, 1933, was to discontinue the road in question as a county road under the first section of the above quoted act. There is nothing before us to indicate that there was a complete abandonment of the road upon notice as prescribed by the statute, and, hence, we must regard this portion of the road still as a public highway with responsibility for its maintenance and construction in the authorities of the Borough of Seabright. Under this view the rights of the United States to the use of the road are not adversely affected, nor does it appear that the defendant, William Sandlass, would have the power to shut off the use thereof by the United States.
Defendant's contention that he is a purchaser for value without notice of the creation of the government's easement, because the deed creating the easement is not in his chain of title, is likewise erroneous. The defendant and the government trace their title to common grantors. The map of 1880 was a public record, and if defendant had made a proper search of his title the right of way would have disclosed itself.
The defenses of laches, adverse possession and unclean hands are aimed at the government's dilatory assertion of its claim to a forty foot roadway. It is conceded, however, that the government's rights cannot be foreclosed by its laches, or by adverse possession. Defendant, however, seeks to avoid the consequences of this concession by changing the label it appends to the government's inactivity. He says the same conduct constitutes "unclean hands" or renders applicable the maxim, "He who seeks equity must do equity". The argument is artificial. The government as conceded by defendant cannot be penalized for its inactivity, and that immunity remains intact.
The contention that the complainant has an adequate remedy at law has not been pressed. The only claim in this connection was confined to the argument that title was in issue and should first be determined in a court of law. We have determined that this is unnecessary under the circumstances. Hence, we do not feel that the adequacy of legal remedies requires any further consideration.
The injunction sought for the removal of the encroachment is granted.
It is unnecessary to consider the counterclaim of defendant. No evidence being presented in support thereof, it is apparent that these contentions have been abandoned.