On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
Plaintiffs Scott and Catherine MacBean, husband and wife, contracted to purchase a one-story frame dwelling located on a lot in the Township of Dover for $24,000 in early April 1973. Plaintiffs obtained a survey of the subject property which was performed on April 12, 1973 by Clymer and Associates, licensed land surveyors of this State. A copy of the survey is attached to this opinion. The metes and bounds description was as follows:
BEGINNING at a point in the Westerly line of Warren Street, said point being 1300 feet on a course South 11 degrees 35 minutes West from a concrete monument at the Southwesterly corner of said Warren Street and Bay Avenue; thence running as the Magnetic
Needle pointed in the year 1950, along the Westerly line of said Warren Street
(1) South 11 degrees 35 minutes West 100.00 feet to a point in the Southerly line of the whole tract;
(2) North 77 degrees 54 minutes West 100 feet to a point in said Southerly line of the whole tract;
(3) North 11 degrees 35 minutes East 100.00 feet to a point;
(4) South 77 degrees 48 minutes East 100 feet to the place of BEGINNING.
The survey contained the following certification:
I certify that this survey has been made under my immediate supervision and that it is correct, as per record description, and that there are no encroachments either way across the property lines, except as shown.
The survey clearly indicated a purported public street denominated "Delaware Ave.," 50 feet in width and running in a east-west direction, upon which the subject parcel abutted and the house fronted. However, it is to be noted that "Delaware Ave." was not mentioned in the quoted metes and bounds description.
It is undisputed that plaintiffs fully intended to and did use "Delaware Ave." for ingress and egress to the front of their residence by concrete walkway and driveway. The subject parcel was bounded on the east side by Warren Avenue, a paved and dedicated street. That portion of "Delaware Ave." directly abutting the subject parcel and to the north of it was unpaved and uncurbed to the west of the intersection of "Delaware Ave." and Warren Avenue, according to plaintiffs' counsel's representation at oral argument. Counsel also represented that "Delaware Ave." was paved and otherwise improved for the five or six blocks it extended east of the intersection. The unpaved portion of ...