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Kiernan v. Primavera

Decided: March 3, 1970.

PAUL KIERNAN, JR., PLAINTIFF,
v.
RUDOLPH F. PRIMAVERA AND MINNIE I. PRIMAVERA, HIS WIFE, JAMES VANCELIS, SINGLE, AND MONMOUTH COUNTY NATIONAL BANK, A NATIONAL BANKING CORPORATION, DEFENDANTS



Lane, J.s.c.

Lane

Plaintiff seeks to quiet title to certain premises in the City of Long Branch insofar as any claims of defendants are concerned. Defendants Primavera counterclaimed to quiet their title insofar as any claim of plaintiff is concerned. Defaults have been entered against the other defendants. The matter is before the court on final hearing.

The premises in question consist of a strip of land approximately 200' X 40' which was originally part of a large tract of land owned by Carolyn M. Shepard. A subdivision map was filed in the Monmouth County Clerk's office September 24, 1871 designating the premises in question as Shepard Avenue. The premises and the lands lying south of it in the tract were conveyed by the Shepards and on October 15, 1903 came into the ownership of William C. Keller. The property immediately south of the premises in question became, by mesne conveyances vested in the New Jersey Mortgage & Trust Company. On August 25, 1913 that company conveyed a portion of this property to the City of Long Branch for a roadway, now a public street known as West End Court. This street lies immediately to the south of the premises in question, and the Primavera property lies immediately to the north.

On the 1906 Long Branch tax map the premises in question is shown as an enclosed lot although designated both "Shepard Avenue" and "Block 65, Lot 22." The tax duplicates for 1928 (the records in Freehold and Long Branch go back no further) show the premises in question as being owned by the New York and Long Branch Railroad Company. In 1959 the error in assessment was discovered and the last record title holder, William C. Keller, was assessed for the taxes for that year. Since the 1959 taxes were not paid, there was a tax sale to the City of Long Branch in 1960. Thereafter, Long Branch commenced an in rem tax foreclosure action which resulted in a judgment dated February 6, 1964 and recorded February 13, 1964.

On December 29, 1964 Long Branch passed an ordinance vacating Shepard Avenue. On January 11, 1965 the city sold the premises to plaintiff's immediate predecessor in title. The deed to plaintiff was dated January 5, 1968. There is no charge of any intrigue or venal impropriety on the part of the city, the purchaser from the city or plaintiff.

Defendants contend that since the deeds to their predecessors in title conveyed the respective lots by description abutting Shepard Avenue, the conveyances included one-half of Shepard Avenue subject to the rights of the public by the prior dedication, and therefore, upon the adoption of the ordinance vacating Shepard Avenue it vested in them to the center line discharged of the public easement. State v. Cooper , 24 N.J. 261, 267 (1957), cert. den. 355 U.S. 829, 78 S. Ct. 41, 2 L. Ed. 2d 42 (1957); Stockhold v. Jackson Twp. , 136 N.J.L. 264 (E. & A. 1947). They contend that the in rem tax foreclosure proceedings were invalid because Shepard Avenue had, in fact been accepted as a public street and, therefore, was not the subject of taxation, and because they had no notice of the in rem tax foreclosure action.

It is conceded that when lands are sold with reference to a map upon which lots and streets are delineated, there is a dedication of the streets to the public, which dedication cannot be revoked except by consent of the municipality. Highway Holding Co. v. Yara Engineering Corp. , 22 N.J. 119, 126 (1956). There must, however, be an acceptance of the dedication, either by municipal action or by public usage, before the municipality becomes responsible for the street.

Here, there was no ordinance or resolution of the municipal governing body accepting Shepard Avenue. The failure to assess until 1959 did not constitute acceptance. Arnold v. Orange , 73 N.J. Eq. 280, 282 (Ch. 1907); Fuller v. Belleville Tp. , 67 N.J. Eq. 468 (Ch. 1904). It was consistent with the tax duplicates showing the owner as the

New York and Long Branch Railroad Company. Defendants have failed to show any action on the part of Long Branch that would constitute express or implied acceptance of Shepard Avenue.

Defendants urge that there has been acceptance by public use. Stores have been erected on their property. Since 1958 customers and deliverymen to the stores have used the premises in question for parking purposes. In addition, a portion of the premises has been used for access to the rear of the stores, although such use for access is not necessary. It is contended that if retail stores are built on the property known as Shepard Avenue (which is plaintiff's intention), parking in the surrounding public streets for patrons of the stores on defendants' property and others would be congested and suppliers would have difficulty making deliveries to the stores. The lot itself is vacant, unoccupied and partially overgrown with weeds.

Defendants assert that with the dedication, public use for less than 20 years constitutes acceptance as a public street. In Velasco v. Goldman Builders, Inc. , 93 N.J. ...


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