Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
This is an appeal from a judgment of the Superior Court, Law Division, setting aside as null and void a deed from the City of Bayonne to Mill Realty Corporation conveying certain municipal park lands, ordering the corporation to reconvey the lands to the city, and directing that upon such reconveyance the city repay the purchase price of $80,000, without interest.
The city acted under the provisions of N.J.S.A. 40:61-22.2 and 22.3 in selling the lands. On November 6, 1951 the Board of Commissioners of the City of Bayonne adopted a resolution authorizing the sale of park lands located on the northwest side of Avenue A near 25th Street in that city. The resolution described the lands intended to be sold by metes and bounds. These lands fronted on Avenue A a distance of 572.91 feet and extended northwestwardly from the avenue to a line described as "the original high water line fronting on Newark Bay." The resolution concluded as follows:
"Excepting and reserving therefrom a strip of land 1 foot wide for the entire length of the said original high water line said strip of land having for its western boundary the said high water line. The City of Bayonne reserves the said foot of land for the purpose of preserving to the City of Bayonne any riparian rights, none of which are included in this sale.
Irrespective of the foregoing metes and bounds description there is included in the land to be sold only so much thereof as lies to the East of a paved road [Park Road] running the entire length of the property along its western boundary."
The "original high water line" mentioned in the description appears as a dotted line marked "Original Shore Line" on a map of the property prepared in November 1951 and introduced in evidence by plaintiff. This line begins at a point in 25th Street some 40 feet southeast of Park Road and then traces a curve of a hanging are which finally crosses the line of Park Road, extended, and goes on to meet the northeastern boundary of the tract at a point some 30 feet north of the extended line of the road. The result is the formation on the map of a small triangle at the northwestern corner of the tract.
The November 6, 1951 resolution fixed a minimum sale price of $50,000. The property was to be sold subject to the restrictions that the purchaser would be required to erect multiple dwelling units for rental purposes for at least 250 families and provide on-site parking facilities for at
least 125 automobiles, the buildings not to occupy more than one-third of the land area.
Public notice of the sale was duly advertised, the notice containing the same description, minimum price, conditions and restrictions as the resolution. On November 20, 1951, the date fixed for the public sale, defendant Mill Realty Corporation was the successful bidder, its bid being $80,000.
On February 14, 1952 the board of commissioners adopted a resolution authorizing the execution of a deed to the lands described as "lying between Avenue A and the easterly line of Park Road and the extension thereof, to lands of the Board of Education and between lands of the Board of Education and West 25th Street * * *." The municipality had been unable to clear up title to a small section in the southwestern corner of the tract, bounded by Park Road and 25th Street, and was awaiting a grant from the Department of Conservation and Economic Development. Accordingly, the resolution recited that Mill Realty Corporation being willing to accept title to this small plot at a later date, the city would execute a deed therefor upon receiving the grant in fee simple from the State.
The deed to the main tract was executed on behalf of the city by its mayor and city clerk on February 15, 1952, and delivered to defendant corporation. As described in the deed, the lands conveyed extended from the Avenue A frontage northwestwardly to Park Road, extended. Two parcels were excepted and reserved from the grant: (1) "a strip of land one foot wide lying adjacent to and east of the original high water line for the entire distance that the said high water line extends across the above described tract," and (2) the small plot in the southwest corner of the tract, already mentioned.
Meanwhile, on December 18, 1951 the board of commissioners had adopted a resolution authorizing an exchange of lands between the city and Mill Realty Corporation. The city was to convey the one-foot-wide strip along the original high water line fronting on Newark Bay mentioned in the
original resolution of sale and in the public notice. The corporation, in turn, was to convey a one-foot strip along the southeastern boundary of Park Road, extended, when and if title to the strip became vested in it. This resolution is mentioned merely to complete the account of the transaction between the city and the corporation. The effect or validity of the resolution need not be considered in view of the conclusion we reach as to the validity of the sale and conveyance of the main tract by the city.
Plaintiff, as a resident and taxpayer of the City of Bayonne, filed his complaint on March 11, 1952 to have the several resolutions that have been described, as well as the deed of February 15, 1952, set aside as null and void. He joined the City of Bayonne, its mayor and city clerk, and Mill Realty Corporation as defendants. They all answered, setting up separate defenses. Mill Realty Corporation cross-claimed against the municipality.
The pleadings and pretrial order narrow the issues to two. Plaintiff claims that (1) the lands described in the deed exceed in area those described in the public advertisement, and therefore the deed is void or should be reformed to conform to the advertisement; and (2) the portion of the dedicated park lands lying southeast of Park Road are lands reclaimed by bulkheading and filling, and therefore could not be sold in view of the prohibition of N.J.S.A. 40:61-22.2. Defendant city and its officers contend that the deed to the corporation is in conformity with the authorizing resolutions and the notice of sale, that none of the lands sold were reclaimed by bulkheading and filling, and that plaintiff is in laches. Defendant Mill Realty Corporation asserts the same defenses, and in addition thereto claims that the purpose and intent of the original notice of sale was to include all of the lands described in the deed under attack. By its cross-claim it asks the court, in the event the deed is set aside, to order repayment of the $80,000 by the city upon reconveyance of the lands in question.
In awarding judgment to plaintiff the Law Division held: (1) the statute (N.J.S.A. 40:61-22.2) authorized only the sale of unreclaimed lands under water and used for park purposes; and (2) the area of the lands described in the deed exceeded that of the lands described in the public notice. The judgment, as already noted, set the deed aside as null and void, and ordered the city to repay the $80,000 paid by Mill ...