For modification -- Chief Justice Vanderbilt, and Justices Burling, Jacobs and Weintraub. For affirmance -- Justices Heher and Oliphant. The opinion of the court was delivered by Jacobs, J.
[24 NJ Page 263] The Law Division rendered a declaratory judgment in which it determined that the defendant Borough of Fort Lee was entitled to no compensation whatever and that the individual defendants were entitled to only nominal compensation by reason of the State Highway Commissioner's taking of the lands described in the complaint. The defendants appealed to the Appellate Division and we certified on our own motion.
On July 30, 1851 a "map of the property of Joseph Coyte near Fort Lee in the Township of Hackensack in the County of Bergen and State of New Jersey (known as the Village of Coytesville)" was filed with the Clerk of Bergen County. The property was divided into building lots and an area of approximately 2.6 acres, bordering on a street then named Palisade Road (now Hudson Terrace) and located between lots 669 and 670, was designated as a "Public Square." The lots were sold in due course and for more than a century the Public Square has been devoted to public use. The Borough of Fort Lee was incorporated in 1904 and thereafter maintained the area as a tax exempt public park in which persons could stroll near the Palisades Cliff and see the New York skyline. The park was bounded on its westerly side by Hudson Terrace where masonry piers and a chain fence had been installed. Sidewalks extended toward an outlook point along the cliff and there was a cannon, a flag pole, and other minor miscellanea in the park.
In the course of the construction of the Palisades Interstate Parkway, the State Highway Commissioner determined that it was necessary "to acquire for public use for State highway purposes a fee simple absolute pursuant to Chapter 112 of the Laws of 1951, N.J.S.A. 27:7-22.2" in the aforementioned park area, and on May 21, 1954 he filed a condemnation complaint seeking the appointment of "commissioners in accordance with Chapter 20 of the Laws of 1953, N.J.S.A. 20:1-1 et seq. " Commissioners were appointed and several orders extending the time for the filing of their report were entered. A settlement offer of $40,000 to the individual defendants, as successors in interest of Joseph Coyte was at one time made without prejudice but was later withdrawn because of a legal opinion from the Attorney-General's office advising that there were decisions indicating that the individual defendants were entitled to no compensation or only nominal damages. In the meantime the State Highway Department has taken legal possession of the entire tract, has completed a high speed limited access highway which (including lawns and dividing areas)
occupies about five-sixths of the park area. The highway runs between Hudson Terrace and the Palisades Cliff and consists of two paved lanes (each about 50 feet) separated by grass safety islands. A fence bars direct access from Hudson Terrace, and although a strip of land (ranging from about 50 to 100 feet and approximating about one-sixth of the original park area) along the edge of the Palisades Cliff has been left in its former condition, it can be reached only indirectly by way of an overpass some distance away.
On September 13, 1955 the State Highway Commissioner filed a complaint in which he sought a declaration that the individual defendants, as successors in interest of Joseph Coyte, and the defendant Borough of Fort Lee, are not entitled to compensation by virtue of the taking of the lands described in the complaint. Answers and cross-claims were filed and thereafter the State Highway Commissioner moved for summary judgment on the basis of supporting affidavits. Answering affidavits were filed and on July 2, 1956 Judge Waesche filed an opinion in which he expressed the view that the Borough of Fort Lee was entitled to no compensation and that the individual defendants were entitled to only nominal compensation. On August 21, 1956 a formal declaratory judgment was entered and notice of appeal therefrom was filed in due course. No one before us has raised any question as to the procedural propriety of the declaratory judgments action, although the individual defendants have urged that summary judgment was inappropriate since there were disputed questions of fact. However, as we now view the matter, the circumstances which are here material are not in dispute and the pending condemnation proceeding may justly be permitted to proceed in regular course, under the guidance of the legal principles which are hereinafter set forth.
Many New Jersey cases have dealt with instances comparable to the 1851 designation of the Public Square by Joseph Coyte. See Trustees of M.E. Church, Hoboken, v. Mayor, etc., of City of Hoboken, 33 N.J.L. 13 (Sup. Ct. 1868); Price v. Inhabitants of City of Plainfield, 40 N.J.L. 608
(E. & A. 1878); Mayor and Council of City of Bayonne v. Ford, 43 N.J.L. 292 (Sup. Ct. 1881); Weger v. Inhabitants of Delran Twp., 61 N.J.L. 224 (E. & A. 1897); Fessler v. Town of Union, 67 N.J. Eq. 14 (Ch. 1904), affirmed 68 N.J. Eq. 657 (E. & A. 1905); Belmar v. Barnett, 77 N.J.L. 559 (E. & A. 1909); Long Branch v. Toovey, 104 N.J.L. 335 (E. & A. 1928); Highway Holding Co. v. Yara Engineering Corp., 22 N.J. 119, 125 (1956). In their light it may no longer be questioned that, by his conduct, Mr. Coyte must be taken to have intended to dedicate the area as a public place for recreation, relaxation and rest. See Price v. Inhabitants of City of Plainfield, supra, 40 N.J.L., at page 613. Cf. Haven Homes v. Raritan Tp., 19 N.J. 239, 246 (1955). In his day he appropriately referred to it as a public square, though in later days it came to be known as Coytesville Park. He undoubtedly understood and desired that the area would be available to the public generally, while aware that for the most part it would benefit the residents of the community and particularly those who occupied the adjacent and nearby lots which he was in the process of selling. See Borough of Fenwick v. Town of Old Saybrook, 133 Conn. 22, 47 A. 2 d 849, 853 (Sup. Ct. Err. 1946) where the court pointed out that a park is "primarily for the benefit of the inhabitants of the municipality in which it exists" and "also for the use of the general public."
That there was legal acceptance of the area as a public square or park is amply evidenced by the exercise of municipal dominion and the long public user; after acceptance the municipal authorities came under a duty to maintain it for the public benefit. See Sarty v. Millburn Tp., 28 N.J. Super. 199 (App. Div. 1953). The interest of the municipality has been described as "a sort of secondary title in trust for the purposes of the dedication, while the bare legal title remains in the dedicator in trust for the use expressly or impliedly declared in the dedication." Hill v. Borough of Belmar, 3 N.J. Misc. 254, 256 (Sup. Ct. 1925); Pitney, V.C. in Fessler v. Town of Union, supra,
67 N.J. Eq., at page 22. Earlier, in Trustees of M.E. Church, Hoboken, v. Mayor, etc., of City of Hoboken, supra, Justice Depue had ...