On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant and Burling. For affirmance -- Justice Heher. The opinion of the court was delivered by Case, J.
The appeal to the Appellate Division of the Superior Court was certified to us on our own motion.
Plaintiffs sued in ejectment to obtain possession of a lot of land in the Borough of Point Pleasant, measuring 50 feet by 100 feet, formerly the bed of a street dedicated as Leuckel Avenue, the street having been dedicated by the owner and subsequently vacated by municipal action. The land lies between the property of the defendant and other property of plaintiffs. The parties waived jury trial, stipulated such few facts as they considered were essential to decision and submitted the case to the court for determination of the legal questions. Judgment for possession was rendered in favor of the plaintiffs. Defendant appeals.
Edward B. Morris Realty Company, a corporation, owned a tract of land bordering on the northern boundary of, but not including any of the original land of, the plaintiffs. That corporation undertook a lot development and in so doing dedicated as a street, called Leuckel Avenue, a strip of land 50 feet in width beginning at St. Louis Avenue and running westerly therefrom an undefined distance. Its land was divided into lots, the taxes upon one of which were left unpaid. The Borough of Point Pleasant foreclosed its tax lien on that lot and on November 26, 1946, sold it to defendant. The lot was at the northwest corner of Leuckel Avenue and St. Louis Avenue, and the deed description follows:
"All that certain lot, tract, or parcel of land situate, lying and being in the Borough of Point Pleasant Beach, County of Ocean, and State of New Jersey, being known and designated as Lot 21 in Block 78 on the Assessment Map of the Borough of Point Pleasant Beach, County of Ocean, and State of New Jersey, and more particularly described as follows:
BEGINNING at a point, said point being at the intersection of the Westerly line of St. Louis Avenue and Northerly line of Leuckel Avenue and running, Thence (1) Northerly along the Westerly line of St. Louis Avenue 50 feet to a point, Thence (2) Westerly at right angles to St. Louis Avenue 100 feet to a point, Thence (3) Westerly (Southerly?) and parallel with St. Louis Avenue 50 feet to the Northerly line of Leuckel Avenue, Thence (4) Easterly along the Northerly Line of Leuckel Avenue 100 feet to the point or place of Beginning."
The pleadings show that the assessment upon which the tax proceedings were based was upon the lot described in defendant's deed. While the deed description is by reference to the assessment map, we take cognizance of the purpose and practice to have assessment maps conform to the divisions established by the owner for the purposes of transfer, and we infer, in the absence of proof from which an inference to the contrary may be drawn, that the lots shown on the assessment map followed the lines of the development map.
On December 5, 1946, the borough, by ordinance, vacated all public rights in Leuckel Avenue. Plaintiffs, at an undetermined time, acquired title to a plot of land which, while located at the southwest corner of Leuckel Avenue and St. Louis Avenue, was not a part of the holdings of the Edward B. Morris Realty Company. At some date, presumably, according to the complaint, March 22, 1949, plaintiffs obtained a bargain and sale deed from one John Ceremsak, surviving director and trustee in dissolution of the Edward B. Morris Realty Company, for the easterly end of Leuckel Avenue, measuring the full width (50 feet) of that former street and running to a depth of 150 feet. That land, except for the westerly 50 feet of its length, lies between the property of plaintiffs and the property of defendant. It, or at least a part of it, is in the active occupancy of defendant who claims as of right (1) to the middle thereof because their lot borders thereon and a predecessor in title owned and dedicated the street land and (2) beyond that to the entire width because plaintiffs, as to their original plot, acquired from an entirely different chain of title and had no privity with the dedicator.
The basic argument upon which plaintiffs claim the defendant has no right in the disputed land is that it was within the choice of the original owner, dedicator of the street, to convey or to withhold from conveyance the land from the side line to the middle of the street, that such owner did not convey to the borough, that the borough did not and could not assess the street land while the same was subject to the street easement, that since the borough could sell only what it possessed
and possessed only what it assessed, the land which the borough got, and therefore could sell, was the lot, as described, extending ...