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Velasco v. Goldman Builders Inc.

Decided: December 13, 1966.

FLORENCE VELASCO, ET AL., PLAINTIFFS-APPELLANTS,
v.
GOLDMAN BUILDERS, INC., ET AL., DEFENDANTS-RESPONDENTS



Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

[93 NJSuper Page 126] Plaintiffs, 47 in number, instituted proceedings in the Chancery Division to prevent the closing of an alleged public right of way. The complaint was dismissed at the close of their case, and judgment was entered in favor of defendants. Plaintiffs appeal.

The general area involved in this litigation is bounded on the north by the Port Reading Railroad tracks, on the south by New Jersey State Highway 25 (U.S. 1), on the east by the Garden State Parkway, and on the west by Roosevelt Park and the Menlo Park Shopping Center. The easterly section of the tract is in Woodbridge Township; the westerly part is in Edison Township. The boundary line separating those two municipalities extends roughly north to south. The Edison portion is bisected by Parsonage Road, which also follows a general north-south course.

It appears from the record that defendants Sommers brothers and their various company entities, now represented by trustees in dissolution (herein Sommers), in 1954-55 developed a residential project of approximately 800 houses, known as Menlo Park Terrace, on that portion of the tract located in Woodbridge.

The development plot plan reveals a grid-type layout of roads, with Menlo and Ford Avenues, running north-south, merging at right angles with the state highway (hereinafter Route 1). Several east-west streets dead-end abruptly at or near the western boundary of Woodbridge including McGuire Street, which is the sixth street north of and parallel to Route 1; they are intersected by the afore-mentioned north-south avenues. The construction yard for the project was located adjacent to Route 1, and Ford and Menlo Avenues were utilized by the construction crew as the main access roads to the development during the building activities.

A sample house was erected by Sommers on McGuire Street approximately 50 feet east of the Edison-Woodbridge dividing line, and from thence the street was extended approximately 1,400 feet westward through wooded lands in Edison, owned by Sommers, to Parsonage Road. McGuire Street as extended was the only means of direct public ingress and egress to and from the development from the west and continued as such until 1965, when it was closed.

About five or six years after the completion and sale of the houses, Sommers built the Menlo Park Shopping Center on

that portion of their land in Edison west of Parsonage Road. They also constructed a commercial building (the Montgomery Ward Tire Shop) on the east side of that road at the approximate location where it was joined by the McGuire Street extension. Incident to the construction of the tire shop the McGuire Street entrance to Parsonage Road was relocated approximately 200 feet south of its original situs and followed a delineated course which included passage over a paved parking area of the tire shop.

In 1964 Sommers sold their interest in the shopping center, and the tire shop with its immediately adjacent lands, to defendant Furman-Wolfson Corporation, and the parties provided for a "perpetual street easement" in favor of Sommers with respect to the McGuire Street extension.

The following year defendant Paul Goldman, a builder and engineer, on behalf of corporations and a joint venture in which he had interests (herein Goldman) concluded negotiations, commenced in 1963, for the purchase of Sommers' remaining property in Edison, including the woodlands through which McGuire Street had been extended to Parsonage Road. The new owners then submitted a proposal to the Edison Township Planning Board for the construction of a 592-unit garden apartment development adjacent to Menlo Park Terrace. The Goldman plan contemplated a discontinuance of McGuire Street from the Woodbridge boundary line to Parsonage Road. A building permit was issued on November 22, 1965 and, on the same day, the McGuire Street extension was closed.

The pending suit, instituted on December 2, 1965, was precipitated by the closing of that right of way. Plaintiffs, with one exception, were home owners and residents in Menlo Park Terrace. They maintain that McGuire Street, a dedicated and accepted thoroughfare in Woodbridge, is a public right of way extending across the Woodbridge boundary, westward through the lands of Goldman in Edison, to Parsonage Road; the same was used as a public street from 1954 to 1965, and Sommers and their successor in title, Goldman, are estopped

from asserting against plaintiffs that the McGuire Street extension is a private road. They sought by their complaint (1) to restrain Goldman from constructing an apartment project that would interfere with the continued use of that alleged public right of way; (2) to rescind the aforesaid building permit, and (3) to recover punitive damages for fraud.

Mrs. Adeline Lofstrom, one of the plaintiffs, testified, in substance, that she resided at 58 McGuire Street; she and her husband purchased a house at that address in 1954; they were attracted to the Menlo Park Terrace development through newspaper advertising, and their homesite was selected from a map at the sales office in the model house on McGuire Street. She further testified that she was told by Sommers' salesmen that there would be a large shopping center on the west side of Parsonage Road which could be reached by walking "straight down our street and we were on McGuire Street." In describing that street as it existed on her first visit to the development she said: "It was a paved, blacktop road extending from Parsonage Road straight, curving just previously to the model home, then straightening out again," and when asked, "What use has been given to McGuire Street between your home and Parsonage Road since you have moved there in 1954?", she replied:

"Pedestrian traffic, cars, trucks, delivery service from United Parcel and many other services along with the mail truck. Two buses of Suburban Transit, school buses from St. Cecilia's and the cerebral palsy school bus. * * *"

Six other plaintiffs gave evidence substantially to the same effect as that given by Mrs. Lofstrom. There was testimony that the maps displayed at the sample house showed McGuire Street as extended from the development to Parsonage Road. The original maps used in the selling program were not produced; according to the deposition of defendant Abraham Sommers, they are not in existence. However, a copy of the "Plot Plan of Menlo Park Terrace," filed with the county clerk in June 1953, was received in evidence. Although it only embraced the development in Woodbridge, we note that

the peripheral lines of McGuire Street project across the municipal boundary. It is clear from the exhibits and testimony that neither the deposit receipts nor the purchase contracts mentioned a filed plan, but a reference thereto was made in the deeds. The parties stipulated, during the trial, that the same forms of contracts and deeds were used in all sales and that none of those instruments made an express reservation of an easement or right of way with respect to the extension of McGuire Street.

Copies of the advertisements referred to by the witnesses were admitted in evidence. They directed prospective purchasers to the premises via Parsonage Road and, in bold print, employed language such as: "Menlo Park Terrace Homes -- Off Parsonage Road Next to Roosevelt Park." The evidentiary exhibits included, inter alia, a reprint of a 1956 geodetic survey published by the United States Department of the Interior which depicts McGuire Street as a "light-duty" road originating in the easterly section of Menlo Park Terrace and continuing westward to Parsonage Road. Also two aerial photographs, dated April 2, 1962, were produced through Charles Beagle, a professional engineer and custodian of the municipal engineering records. They were taken for the purpose of photogrammetry of Woodbridge and plainly show the existence of a roadway from Parsonage Road connecting with McGuire Street in the development. The witness identified the roadway as "a traveled way or a street that was used by the general public," and stated that it was known locally as the "extension to McGuire Street."

It was demonstrated by the testimony of several witnesses that for a period of approximately nine to ten years after Menlo Park Terrace had been developed there were no signs or notices of any type indicating that the McGuire Street extension was a private road or the subject of a revocable easement. The first appearance of any sign occurred sometime in 1964 or 1965. The sign was characterized as "a little sign posted on the cyclone fence at Montgomery Ward." It reads:

"PRIVATE PROPERTY

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