On appeal from former Supreme Court, Morris County.
For affirmance -- Justices Case, Heher, Wachenfeld, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt and Justice Oliphant. The opinion of the court was delivered by Burling, J. Heher, J. (concurring). Oliphant, J. (dissenting).
This is an appeal by the plaintiff municipality from a judgment of the former Supreme Court, Morris County Circuit, upon a verdict of a jury of no cause of action. The appeal was pending in the former Court of Errors and Appeals on September 15, 1948. Constitution 1947, Art. XI, sec. IV, par. 8 (a). The appeal seeks a review of the refusal by the trial judge to direct a verdict for the plaintiff and the overruling of objections to evidence introduced by the defendant.
Plaintiff, engaged in road building within the confines of its municipality, undertook the widening of a public highway in its Township, known as North Beverwyck Road, to the extent of 66 feet, it being its contention that the said North Beverwyck Road was an ancient road and that applying the doctrine enunciated in the case of Ward v. Folly, 5 N.J.L. 566 (Sup. Ct. 1819), hereinafter discussed, it is presumed to be 66 feet in width. North Beverwyck Road is presently used to a width of 50 feet.
While plaintiff was in the process of widening the said Road, one Troy Hills, Inc., a New Jersey corporation, which was the promoter of the real property development known as Lake Hiawatha, and Victor Bowman, the defendant in this action and the owner of lands and premises abutting on said road, instituted an injunction proceeding in the former Court of Chancery to restrain the plaintiff from proceeding with the widening of said North Beverwyck Road beyond a 50 feet width.
The matter was preliminarily heard in the former Court of Chancery on an order to show cause obtained by the said Troy Hills, Inc., and Victor Bowman, the defendant in this action, before former Vice-Chancellor Fielder. The former Vice-Chancellor decided that since the matter involved a question of title to lands, the decision as to the title rested with a court of law and could not be determined by the Court
of Chancery, and directed that the suit be instituted at law by the plaintiff in this action to establish the right of the plaintiff to take from the defendant in this action the lands it desires to use; and further issued a temporary injunction, and held the Bill of Complaint in question pending the determination of the issue at law; wherefore the institution of this proceeding in ejectment.
The immediate questions raised by the appeal are: (1) whether the trial court erred in not directing a verdict for the plaintiff upon the premise that uncontradicted proof of the existence of a highway in 1760, created a conclusive presumption that such highway was an ancient public road required by acts of the assembly, prior to 1760, to be 4 rods, or 66 feet in width, (2) whether certain maps and testimony of the municipality's tax assessor, introduced into evidence by the defendant, should have been excluded.
The plaintiff predicated its case upon the doctrine of Ward v. Folly, supra, in which case the court reviewed the history of the pertinent legislation which authorized the building of roads. The first act was adopted in 1682, soon after the first settlement of the province. It directed that all necessary highways should be set and laid out in and through every county within this province by certain persons therein named; and that they should "make account thereof and give and return the same to the governor and council, that they may be entered and registered in the public records of the said province." The next act was passed in 1716. It confirmed all roads of 6 and 4 rods wide theretofore laid out "by virtue of a certain act of assembly therein mentioned and thereby repealed." This act confirmed the roads theretofore laid out, and directed the choosing of overseers and that "the public highways to be laid out by the said surveyors shall be four rods wide." It also provided for the laying out by surveyors of plantation roads of 1 and 2 rods wide. But there was no provision for a public record of the proceeding. Thus, between 1716 and 1760 no provision existed requiring a road return to be made a public record. The next act was passed in 1760. It confirmed all roads and highways of 6 and 4
rods wide which had "theretofore been laid by any acts of assembly whatsoever" and after directing the manner of choosing surveyors, and of obtaining a public road, and "that the road so to be laid out shall be two, three or four rods wide, as the case may require," it especially directed that the said surveyors should make return thereof to the clerk of the county who should record the same in the record book.
In 1774, an act was passed confirming all roads and highways of 6 and 4 rods wide "theretofore laid out by any act or acts of assembly whatsoever."
The court concluded in the Ward v. Folly case, that an ancient road, proved to be in existence prior to the 1760 act, was to be presumed to be a public road, 4 rods wide, and laid out pursuant to a previous act of the Colonial Legislature.
The plaintiff offered the following evidence to prove the existence of North Beverwyck Road as an ancient public road established prior to 1760:
(a) An unrecorded deed, dated May 8, 1760, from Gershom Mott to Benjamin Howell, conveying premises therein described. Testimony was offered by a great-great grandson of the elder Howell, who had possession of the deed, to the effect that the premises described in said deed had been in the continuous possession of the Howell family since the date of the aforesaid deed, that he presently lives in the property at such location, and that the property described in said deed presently abuts on South Beverwyck Road. The deed, in the metes and bounds description, refers to one of the boundaries of the premises conveyed as a "highway" and as a "road."
(b) A deed, dated August 26, 1761, from Ebenezer Farrand and wife to Patrick Darcey, conveying premises which included the property now owned by the defendant. This latter deed described one of the boundaries of the property so conveyed as the "East side of the Highway leading from Hanover to Pacquanack."
(c) A road return, dated August 12, 1765, which refers to what is now known as Beverwyck Road as the road leading ...