Plaintiff herein seeks a prohibitory injunction to enjoin the defendants from obstructing an alleged public highway and from preventing it from repairing and maintaining said highway. Plaintiff seeks as well a mandatory injunction to compel the defendants to place the highway in the condition in which it was prior to acts allegedly committed by the defendants or some of them, which destroyed a portion thereof.
The defendants generally deny that the road or lane in question is a public highway, and further seek, in any event, to establish an abandonment.
The primary question is whether the described land is a public highway. It is admitted by the parties hereto that if the roadway is a public highway, the same resulted from prescription, user or recognition. The basic principles applicable hereto are as follows:
A public highway may be established by prescription, user or recognition, or by dedication by the landowner, or by statute or direct public action to that end.
In Campbell Stores v. Hoboken , 115 N.J. Eq. 159 (E. & A. 1933), the court said as follows:
"'Whether land has been dedicated to public use is a question of intention to be determined by the acts of the owner and the circumstances of the user. "The right of the public accrues by such acquiescence as carries with it the intention of the owner to subject his fee to the public use; and mere acquiescence for twenty years unaccompanied by any act which repels the presumption of such
intention, is conclusive evidence of abandonment to the public. It must be a use by the public of the neighborhood, not a use confined to one or two individuals."'"
See also Township of Parsippany-Troy Hills v. Bowman , 3 N.J. 97 (1949); Prudden v. Lindsley , 29 N.J. Eq. 615 (E. & A. 1878); Wood v. Hurd , 34 N.J.L. 87 (Sup. Ct. 1869); Riverside v. Pennsylvania Railroad Co. , 74 N.J.L. 476 (E. & A. 1906).
Once having been dedicated to the public use, the right of the public in the highway becomes irrevocable. The actual possession and dominion over such a highway may be suspended and lie dormant until such time as in the judgment of the proper local authorities the public exigencies require their possession and use. The Legislature alone has the power to release the dedicated lands and discharge the public, and the interest of the public in such highway may be lost only upon a formal vacation or abandonment by a duly constituted authority, in the mode and manner prescribed by the law. Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken , 36 N.J.L. 540 (E. & A. 1873); South Amboy v. N.Y. & L.B.R.R. Co. , 66 N.J.L. 623 (E. & A. 1901); Seabright v. Central Railroad Co. , 73 N.J.L. 625 (E. & A. 1905); Long Branch v. Toovey , 104 N.J.L. 335 (E. & A. 1927); Osterweil v. Newark , 116 N.J.L. 227 (E. & A. 1935); George Van Tassel's, etc., Inc., v. Town of Bloomfield , 8 N.J. Super. 524 (Ch. Div. 1950).
The mere fact some officials of the municipality in which the highway had been dedicated failed to bring proceedings for the removal of a gate which had been erected by the defendants or their predecessors in title, and which obstructed a part of the highway temporarily, did not estop the municipality from asserting a right for the public to the use of said highway. Nor can an intention to abandon be sustained by the proof of any such facts. Osterweil v. Newark, supra; Seabright v. Central Railroad Co., supra.
Without reciting in detail the testimony of the various witnesses, which has brought me to the ...