Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.
Defendants, the Township of Millburn and the members of its township committee, appeal from a judgment of the Law Division entered in favor of plaintiffs which held, among other things, that an ordinance for the improvement of Joanna Way in the Township of Millburn, adopted May 5, 1952, was invalid and had to be set aside. Plaintiffs are owners of property abutting Joanna Way.
Prior to December 3, 1934 the Hartshorn Estate, a New Jersey corporation, was engaged in the development of what is known as the old Short Hills section of the Township of Millburn. In the course of this development it constructed Joanna Way and the extension of Lake Road running north from South Lake Shore Drive, as a single project. By letter dated December 3, 1934 and addressed to the township committee, the Hartshorn Estate dedicated Joanna Way and the extension of Lake Road to the township, announcing that it had paved these roads in accordance with township specifications and requesting that the township inspect the roads and have them accepted as township roads. Joanna Way was never accepted by formal resolution of the township committee. However, the extension of Lake Road was accepted by acts of dominion and control prior to 1942 and has been maintained and repaired at township expense. Both roads were 20 feet wide. Some 21 other roads in the immediate area and constructed in the same way have, like Lake Road extension, been accepted by acts of dominion and control.
It may be observed that in 1934 there was no ordinance or regulation fixing standards and requirements for the construction of roads, sewers and drains in Millburn Township. The first standards and requirements ordinance was adopted March 2, 1936 and required, among other things,
that streets to be constructed, or dedicated streets to be accepted, conform to certain standards. On November 7, 1938 this ordinance was amended to provide for the first time for a 30-foot-wide pavement in such streets. Section 29 of the ordinance provides that a township committee may, in its discretion, waive any of its requirements with respect to any street existing on the date of its adoption in 1936. This would, of course, include Joanna Way. Such waiver has been given for other streets not complying with the ordinance, including one built in 1934 which was 20 feet wide and which was accepted by formal resolution in 1945.
It would appear that at the time of their dedication in 1934, Joanna Way and the extension of Lake Road were constructed in substantial conformity with township specifications. The township made no criticism of the construction features in Joanna Way until February 24, 1944, when the township engineer wrote the Hartshorn Estate requesting that certain improvements in the street be effected.
On May 5, 1952 the township committee adopted an ordinance for the improvement of Joanna Way which dealt with the road as "a dedicated but unaccepted street"; provided for its improvement by the substantial rebuilding of the street, including the construction of sewer lines, storm water drains, utility laterals, granite block curbing and the like; provided for a modified penetration macadam pavement 30 feet in width throughout; classified the improvement as local and directed that its entire cost be assessed against lands and real estate which might be benefited thereby; specifically negated classifying the improvement as a current expense of the township; provided for financing the cost of the improvement; and further provided that upon completion to the satisfaction of the township committee, Joanna Way be deemed accepted as a public street. The ordinance was adopted after a public hearing at which the objections of the owners of more than 80% in value of the land fronting on Joanna Way were fully presented. No collateral evidence of public necessity was introduced.
On May 14, 1952 plaintiffs, owners of more than two-thirds in value of lands proposed to be assessed for benefits under the ordinance, appealed from the determination of the township committee that the contemplated improvement was a public necessity. The appeal was taken pursuant to R.S. 40:49-8.
On May 17, 1952 plaintiffs filed a complaint in lieu of prerogative writs challenging the validity of the ordinance. The first count of the complaint demanded judgment that: (1) the ordinance be set aside and declared null and void; (2) it be set aside insofar as it provided for the acceptance of Joanna Way as a public street upon completion of the improvement; (3) it be set aside for the further reason that it provided for assessment of the entire cost of the improvement upon lands that might be benefited thereby; and (4) Joanna Way had been dedicated and accepted as a public street prior to the adoption of the ordinance. By a second count plaintiffs demanded judgment that the township was under a duty and required to maintain Joanna Way as a public street, and directing the township committee to repair it as such.
The two causes were consolidated, and by stipulation the issues were submitted to the Law Division judge for disposition on the basis of the pleadings and the admissions therein, the pretrial order, depositions, exhibits, oral argument and briefs. The parties also stipulated that the court might view and inspect Joanna Way and other streets in the area.
The opinion filed by Judge Hughes, sitting in the Law Division, contains findings of fact and conclusions of law. He found in favor of plaintiffs on all issues embraced in the pleadings except their demand for a mandatory injunction requiring the township committee to repair and maintain Joanna Way. Thereafter, on June 17, 1953, judgment was entered in favor of plaintiffs which provided that: (1) Joanna Way had been accepted by the township by acts of dominion and control prior to May 5, 1952, the ...