For the prosecutor, Barkalow & McGowan and Ward Kremer (Ward Kremer, of counsel).
For the respondent, Robert Lederer.
Before Justices Bodine, Perskie and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. "Bates Road" in Jackson Township in the County of Ocean extends between and connects two county maintained and improved highways, New Prospect Road and Bennetts Mills Road. It runs in a generally east-west direction, having its easterly terminus on the New Prospect Road and its westerly terminus on the Bennetts Mills Road. The property of the prosecutor extends from the New Prospect Road on both sides of Bates Road westerly approximately one-fifth of a mile.
Bates Road had been used as a public road for upwards of sixty years. It had been scraped by the county road department and was used by the public. The testimony indicates that a number of persons used Bates Road for many years through its entire length as a means of ingress and egress to both Bennetts Mills Road and New Prospect Road.
The prosecutor acquired his chicken farm in 1942 and in October, 1945, he appeared before the Township Committee
of Jackson Township and expressed his desire to have that portion of Bates Road running through his land vacated. According to some of the testimony, he represented there were no objections on the part of property owners and that no one used the road any more excepting some children who created a nuisance to his chicken farm.
At his solicitation the committee adopted an ordinance on November 20th, 1945, vacating that portion of the public highway known as Bates Road between the westerly property line of the prosecutor and the westerly line of the New Prospect Road. Although notice of such ordinance was published in a Toms River newspaper, no notice thereof was ever mailed to any of the property owners on said highway or in the vicinity thereof, who claimed that they had no knowledge of the pendency or adoption of the ordinance in question.
After the passage of the ordinance vacating the portion of the street hereinbefore referred to the road was not closed until about May 1st, 1946, when prosecutor erected a barricade and a sign. Immediate objections were made and a petition of protest signed by some sixty-seven citizens was filed. As a result thereof a special meeting of the governing body of the township was called and an ordinance was unanimously adopted repealing the former ordinance vacating the portion of the road in question.
What happened is best explained in the words of Corlis Holman, one of the members of the Township ...