For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
The plaintiffs appeal from a decision of the Chancery Division upholding the right of the Town of West Orange to construct a municipal swimming pool in a playground and general recreational area known as Colgate Field. The plaintiffs are homeowners in the town whose lots are situated on streets which abut the site of the proposed pool.
On March 8, 1965 the plaintiffs instituted an action in lieu of prerogative writ which named as defendants the Town of West Orange, its Mayor and its Business Administrator. On the same day the plaintiffs also applied to the Superior Court, Chancery Division, for an order enjoining these defendants from taking any action in connection with the proposed pool. Both of these complaints alleged that the building of the municipal swimming pool would violate a restrictive provision in the deed by which the town obtained Colgate Field and thus cause a reversion of the land to the grantor. The complaints also alleged that the location of a swimming pool in a residential district would not be consonant with the town's zoning ordinance. On March 19, 1965 the town instituted a condemnation suit for the purpose of acquiring any outstanding reversionary interest in Colgate Field. Thereafter the plaintiffs moved to intervene in this suit on the ground that the town lacked statutory authority to condemn land for a municipally owned swimming pool. Since the two actions instituted by the plaintiffs and their motion to intervene involved the same subject matter, they were consolidated for hearing before the Chancery Division. After considering affidavits submitted by the parties, Judge Herbert entered a summary judgment in favor of the defendants and denied
plaintiffs' motion to intervene. We certified plaintiffs' appeal on our motion prior to argument in the Appellate Division.
The following facts are undisputed. Before 1927 Colgate Field was known as Washington Playground. Title to its 7.08 acres was vested in the Oak Investment and Security Company which was owned and controlled by Richard M. Colgate. Mr. Colgate died in 1919, and in a codicil to his last will and testament he directed that the land be transferred to a non-profit corporation which was empowered to convey Washington Playground "to the Town of West Orange or to any Board of Trustees or persons who, in the judgment of the managers of said corporation may be best fitted to preserve the land for the use of a playground and as a place of recreation for those living in the neighborhood thereof." The codicil also established a trust fund with a principal of $25,000, the income from which is used to help defray the costs of maintaining Colgate Field.
In 1921 the Oak Investment and Security Company conveyed the land to the non-profit Washington Playground Corporation, and in 1927 that corporation conveyed the land to the Town of West Orange by a deed which contained the following habendum:
"TO HAVE AND TO HOLD said premises, with the appurtenances, unto the said party of the second part [Town of West Orange], its successors and assigns, forever; SUBJECT, however, to the express condition that the premises herein described are conveyed for the use of a playground and as a place of recreation for those living in the neighborhood thereof, and in the event that said condition be violated said premises shall revert to the above-named party of the first part [Washington Playground Corporation], its successors or assigns."*fn1
Shortly after taking title, the Commissioners of West Orange adopted a resolution changing the name of Washington Playground to Colgate Field.
Colgate Field is an extensively used recreational area containing facilities for baseball, basketball, handball, tennis and general play by children. It also contains a field house built in 1964 at a cost to the town of over $50,000. The playground is the site of many organized athletic activities conducted under the supervision of the West Orange Superintendent of Recreation. These activities include summer baseball and basketball leagues in which games are played daily on a fixed-schedule basis before crowds sometimes numbering 500 people. The basketball courts are lighted and many of the league games are played at night. There is an annual July 4th celebration which attracts 12,000 to 15,000 people. During the months when schools are not in session a supervised recreation program offers, among other things, arts and crafts, physical fitness classes and a variety of contests and games.
The costs of maintaining and improving Colgate Field have been borne in the greater part by the Town of West Orange. In the five-year period from 1960 through 1964 the municipality expended almost $160,000 in connection with its operation of the playground, while the income from the trust fund established by Mr. Colgate provided $4,670.
For the past several years residents of West Orange have expressed a desire for a municipal swimming pool similar to those operated in neighboring communities. The town officials agreed to construct such a facility, and after much deliberation they selected Colgate Field as the most suitable location. While the plans are not before us, defendants' affidavits show that the pool and related facilities will occupy less than one-fourth (1 2/3 of 7.08 acres) of the area of Colgate Field and that, except for the relocation of two tennis courts, there will be no curtailment of existing recreational activities. Affidavits submitted by the parties indicate that the new pool will consist of a main swimming area 165 feet in length, a diving ...