Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.
In May 1965 plaintiffs-taxpayers sued individually and on behalf of the Borough of Haddonfield to set aside a deed made by the borough to Charles W. Young pursuant to a resolution adopted in April 1962.
The challenged deed conveyed the municipality's interest in a parcel of landlocked property approximately 35 feet wide by 73 feet deep acquired by deed from an Elizabeth B. Stewart dated September 27, 1928. This parcel constituted the rear portion of a lot owned by Miss Stewart. The deed to the borough recited that Miss Stewart did "dedicate, grant, release and convey" unto the borough the premises in question "for public use as and for a portion of a street in said Borough * * *" --
"To have, hold and enjoy the easement above described unto the said party of the second part, its successors and assigns to the only proper use and benefit of said party of the second part its successors and assigns so long as the said street shall be and remain in use as such."
In 1946 Miss Stewart conveyed the entire lot in question by a metes and bounds description to defendant Charles Young, excepting therefrom the premises described in the 1928 "Deed of Dedication" to the borough. Plaintiffs claimed that the municipality had a "property right of value" in the premises which the municipality had no right to convey or give away for the nominal $1 consideration expressed in the deed. They argued that if the nature of the interest conveyed constituted a fee simple (as they maintained), the conveyance was illegal because of failure of the municipality to comply with the advertising and bidding requirements of N.J.S.A. 40:60-26, and that if such interest was deemed to be a dedication for street purposes, it could not be relinquished or extinguished except by ordinance vacating such interest. R.S. 40:67-19. Plaintiffs also charged fraud on the part of defendant members of the governing body in making the conveyance.
Judge Wick, in dismissing the action, found that the municipal officials had acted in good faith, there was no proof of fraud on their part and, therefore, he could not substitute his judgment for their determination. He referred to the resolution adopted by the borough council which recited that the lands in question had never been and were not now used for the purposes described in the deed; that they are not presently being used for public street purposes and cannot be so used because of their position in relation to surrounding lands, and that Miss Stewart had, prior to her death, deeded the lands to defendant Young and that Young had requested the borough to extinguish its interest therein.
We affirm. Contrary to appellants' contention, the 1928 deed from Stewart to the borough conveyed neither a fee simple nor a perpetual easement. It conveyed, as the express terms of the deed indicate, an easement for use of the premises as a portion of a street so long as the street shall be and remain in use as such. The language used is the classic language characterizing a terminable interest as distinguished from one subject to a condition subsequent. The interest so conveyed expired by its own limitations.
Where there is a conveyance of a fee in this fashion, it is a fee simple determinable or a terminable fee. See 2 Powell, The Law of Real Property [hereinafter cited as Powell ], § 187, at p. 44 (1966), where the author comments:
"When a limitation satisfies the requirements * * * of an estate in fee simple, and also provides that the estate shall automatically expire upon the occurrence of a stated event, then the limitation is effective to create an estate in fee simple determinable."
The intent of the conveyor that the estate in fee simple shall automatically expire upon the happening of the stated event may be expressed by any appropriate words. Such an intent is usually manifested by a limitation which contains the words, "so long as," "until" or "during," or a provision that upon the happening of a stated event the land is to revert to the conveyor. See Oldfield v. Stoeco Homes, Inc.,