Mintz, J.c.c. (temporarily assigned).
[40 NJSuper Page 394] Plaintiffs in this action seek a return of their deposit under a contract for the sale of realty, contending that the defendants are unable to convey a marketable title as called for in said contract. The defendants contend that the premises are free from encumbrances and that they can convey a marketable title. They counterclaim for specific performance. Jury trial was
waived, and the cause submitted to the court, on a stipulation of facts, oral argument and briefs.
Defendants acquired title to the subject premises by warranty deed, dated August 10, 1951. The larger tract of approximately two acres, of which the premises in question are a part, is actually part of a large parcel of land subdivided by one George Fichtner, a predecessor in title. Said lands are shown on a map entitled "Property of George Fichtner" approved for filing by the governing body of the Town of Boonton on June 23, 1922, and filed in the Morris County Clerk's Office July 21, 1922, as Map Number 591, Case C. The subject premises are part of an area which appears on that map as a large unnumbered tract, as distinguished from the building lots which were numbered. In addition, there are paths or roadways which pass through the tract, defendants' dwelling under contract for sale to plaintiff, being actually constructed on one of said paths or roadways. It appears to have been the intention of the original subdivider that the large unnumbered tract be used as a park by residents in the development. This is confirmed by a sales brochure received in evidence, disclosing that intent on the part of the developer. No deeds of conveyances out of the development have any reference to the park, although conveyances have generally been made by reference to the filed map.
Approximately 80 houses were constructed on lots in the development apart from the park area. In addition, houses have been erected on the park area, including defendants' dwelling completed in 1951. There were no objections raised by any owners of property in the development to the construction on the park area, and none of said property owners have ever attempted to exercise any rights with respect to the premises in question in particular.
On July 16, 1940 the governing body of the Town of Boonton passed an ordinance vacating all public rights in and to the entire park area. The parties to this litigation have further stipulated that there were no outstanding public rights; that there were no instruments of record releasing
any outstanding private rights in the park area; and that the area in question has never been developed or used for park purposes.
From the undisputed facts it clearly appears that the park area was probably dedicated, but certainly not accepted by the municipality. N.J.S. 2 A:14-12 in effect provides that whenever any municipality shall, after July 24, 1950, adopt an ordinance vacating park lands dedicated by map but not accepted by the municipality, then any person other than the owner of the fee title therein, claiming any easement in the lands vacated, shall be precluded from bringing an action to establish such easement, unless the action is commenced within two years after the effective date of such ordinance. It is unnecessary to pass upon the constitutionality of this statute. It is not applicable to the subject situation, since the ordinance vacating the public rights was adopted by the municipality on July 16, 1940. There is no statutory extinction of any existing private rights if any in the park area which includes the defendants' premises.
The decisional law in this State clearly establishes the principle that parties purchasing lots with reference to a filed map upon which is designated a park area acquire private rights therein in the nature of easements. In Bozarth v. Egg Harbor City , 89 N.J. Eq. 26 (Ch. 1918), the court in this connection stated that:
"The leading case touching the nature and extent of such private rights is Lenning v. Ocean City Association , 41 N.J. Eq. 606. In that case Justice Dixon, speaking for our Court of Errors and Appeals says: 'Whenever the owner of a tract of land lays it out into blocks and lots upon a map, and on that map designates certain portions of the land to be used as streets, parks, squares, or in other modes of a general nature calculated to give additional value to the lots delineated thereon, and then conveys those lots by reference to the map, he becomes bound to the grantees not to use the portions so devoted to the common advantage otherwise than in the manner indicated. * * * From this doctrine, it of course follows that such distinct and independent private rights, in other lands of the grantor than those granted, may be acquired by implied covenant as appurtenant to the premises granted, although they are not of such a nature as to give rise to public rights by dedication. The object of the principle is, not to create public rights, but to secure to persons
purchasing lots under such circumstances those benefits, the promise of which it is reasonable to infer has induced them to buy portions of a tract laid out on the plan indicated.'"
See also Booraem v. North Hudson County Ry. Co. , 40 N.J. Eq. 557 (E. & A. 1885).
In Schweitzer v. Adami , 113 N.J. Eq. 46 (E. & A. 1933), the court reaffirmed the rule laid down in Lennig v. Ocean City Association, supra. It further held that there have been repeated expressions of doubt by our courts as to whether or not private rights in a proposed street or park become merged in the public right when the dedication is consummated by public acceptance, and whether or not such private rights, if they do merge, are thereby extinguished or are merely suspended and revive upon subsequent abandonment of the public right. The court in the Schweitzer case, supra , was concerned with the effect of a filed map showing lots, streets, and certain areas marked respectively "park," "pleasure grounds" and "lake." Apparently none of these areas was accepted by the municipality, which ...