On appeal from the Superior Court, Law Division, Union County.
For reversal -- Justices Oliphant, Wachenfeld, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justice Heher. The opinion of the court was delivered by Oliphant, J.
[22 NJ Page 123] This is an appeal from a summary judgment of the Superior Court, Law Division, entered on order
of the court awarding the return of a deposit of $1,000 made on a contract for the purchase of certain lands, together with search fees in the sum of $150. In entering judgment the trial court held, inter alia, that the title was unmarketable. The appeal was certified here on our own motion.
On application leave was granted to 13 title insurance companies to intervene in this appeal as amici curiae.
The facts in the case are stipulated. On June 24, 1954 the appellant and respondent entered into a contract for the purchase and sale of certain vacant lands presently fronting on the southeasterly side of State Highway Route 25 (U.S. Route No. 1), in Elizabeth, New Jersey, free of all encumbrances, and the plaintiff-respondent paid a deposit of $1,000.
In searching the title it was disclosed that the lands are located on a map entitled "Map of Building Lots belonging to J. C. Blake, A. S. Hotchkiss and others, City of Elizabeth, Essex County, N.J.," hereinafter called the "Blake-Hotchkiss Map," which was filed in 1855 in the Essex County Clerk's Office (Elizabeth being then a part of Essex County), and on May 17, 1929 in the Union County Register's Office. Each block on said map was divided into lots. Many lots were sold by lot numbers and metes and bounds binding on streets shown on said map. Such sales constituted a dedication of streets delineated thereon to the public.
Spruce and Spring Streets were laid out on the map but were never actually developed or used, and there are presently no physical indicia of such streets or buildings abutting thereon. Spring Street and portions of Spruce Street were vacated by the proper municipal authorities on October 18, 1928, September 2, 1931 and October 23, 1952.
A valuable part of the lands contracted to be sold lies within the limits of Spring and Spruce Streets so vacated. All of the properties covered by the map have access to unvacated streets and none of them is landlocked.
No action has been brought at any time relating to the vacation of the aforementioned streets. Respondent rejected
the title on the ground that it was unmarketable because all of the purchasers of lots on the Blake-Hotchkiss Map have private rights in Spring and Spruce Streets which survived the vacation thereof.
The matter was submitted on a stipulation of facts and the trial court found as a fact: (1) that Spring Street and Spruce Street were never accepted by the City of Elizabeth, although dedicated by the sale of lots with reference to the Blake-Hotchkiss Map; (2) that no lots on the said map are landlocked, and the premises contracted to be sold have access to a public highway without resort to these two paper streets; (3) the other lots which abut Spring Street and Spruce Street have access to other streets.
The court concluded as a matter of law: (a) because of the sale of lots with reference to the Blake-Hotchkiss Map, private rights in the street were created; (b) such rights would not have survived an acceptance and vacation of such streets by the City of Elizabeth; (c) such rights do survive the vacation of streets which have not been accepted by the public authorities; (d) that N.J.S. 2 A:14-11 bars all owners of lots shown on the said map, except those whose lots abut Spring Street and Spruce Street and those whose rights of ingress and egress to a public street is solely over such streets; (e) because of the existence of such rights the title is unmarketable.
Two principal questions are presented: (1) when land is sold on or by reference to a filed map upon which lots and streets are laid out, what rights in the street do the purchasers on the map acquire by implied covenant from the grantor; and (2) when such streets have not been accepted but are vacated does the rejection of the dedication result in performance of the implied covenant; do the purchasers retain any rights in the streets after they are vacated?
The parties to this appeal are in accord on the following basic principles which are applicable. When lands are sold with reference to a map upon which lots and streets are delineated, there is a dedication of such streets to the public, Trustees of the M. E. Church v. Hoboken, 33 N.J.L. 13
(Sup. Ct. 1868); Clark v. City of Elizabeth, 40 N.J.L. 172 (E. & A. 1878); New York & Long Branch R.R. v. South Amboy, 57 N.J.L. 252 (Sup. Ct. 1894); Dodge & Bliss Co. v. Mayor, etc., of Jersey City, 105 N.J. Eq. 545 (E. & A. 1929), reversing 103 N.J. Eq. 552 (Ch. 1928), and such dedication continues and cannot be revoked except by consent of the municipality, Packer v. Woodbury, 3 N.J. Misc. 661 (Sup. Ct. 1925); Long Branch v. Toovey, 104 N.J.L. 335 (E. & A. 1928); Hulett v. Sea Girt, 106 N.J. Eq. 118 (Ch. 1930), affirmed 108 N.J. Eq. 309 (E. & A. 1931). After such dedication of streets to the public use, the public has the right to appropriate them at any time it wants or convenience requires, Trustees of the M. E. Church v. Hoboken, supra; Simpson v. Klipstein, 89 N.J. Eq. 543 (E. & A. 1918), no matter how long delayed, Packer v. Woodbury, supra, and these public rights can only be destroyed by proper municipal action, Hulett v. Sea Girt, supra, usually by vacation.
A resolution vacating a street does not take away, or in the least impair, the private rights of an abutting owner; it is only a surrender or extinction of the public easement. United N.J.R.R. & Canal Co. v. National Docks, etc., Co., 57 N.J.L. 523, at page 524 (Sup. Ct. 1894).
The question of the nature and extent of the private right in these streets by the purchaser of a lot with reference to a filed map and whether such private right survives a vacation of the street after it has been dedicated but never accepted by the public authority, is res nova in this State. As both parties to the appeal point out, it has been discussed academically by way of dicta in a number of cases since very early times in this State, but in most cases where the precise question was involved the action was usually dismissed for one of three reasons: (1) in an injunction suit because a preliminary injunction does not issue where the law is doubtful and the facts are not clear; (2) a suit to enforce a contract by way of specific performance is dismissed
when it appears that the legal title is doubtful, since the court will not force a possible law suit on the purchaser; (3) the grantor was estopped by his grant.
The private right in question is separate and distinct from the right of the lot owners shared with the general public by virtue of the public easement impressed on the land by the dedication, or by the dedication and its acceptance by the public authorities. The question is one of intention and a right created by an implied grant, the intention being spelled out at the time and by the filing of the map, or its incorporation by reference in the deeds of the subsequent purchasers of the various lots.
It is settled that mere dedication of streets by a filed map or a reference in a deed to such map, and the opening of the streets as laid out, does not constitute them public highways, unless or until such streets are in some way accepted by public authorities or they are used by the public generally for 20 years as highways. Holmes v. Jersey City, 12 N.J. Eq. 299, at page 309 (E. & A. 1857); Attorney General ex rel. Stickle v. Morris and Essex R.R. Co., 19 N.J. Eq. 386, at page 391 ...