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Another class would be composed of certain cases in which a rehearing has been applied for. Before the introduction of vicechancellors such an application was made directly to the chancellor and was dealt with by him on equitable principles, and the practice was regulated by rules of the court. Since vicechancellors have been made trial judges, the practice on application for the rehearing of causes in which decrees have been signed on the advice of a vice-chancellor was pointed out by a rule of court, which was promulgated in 1871 and is now rule 148. This rule was construed by Chancellor Runyon in Rusling. Administrator, v. Bray, 38 N. J. Eq. (11 Stew.) 398, and held to require an application for rehearing in such cases to be made to the vice-chancellor who had advised the decree in all ordinary cases, and that such an application should be made to or entertained by the chancellor only in exceptional cases.
In Swallow V. Swallou's Administrator, 27 N. J. Eq. (12 C. E. Gr.) 2.8. the chancellor heard an application in a cause in which the decree had been advised by Vice-Chancellor Dodd, who had resigned. In Rusling v. Bray, supra, special reasons were held to justify the chancellor in hearing the application.
If it is made to appear to the chancellor that a rehearing has been practically denied by a vice-chancellor, and that such denial deprives a party of the opportunity of presenting the case on an issue made by the pleadings, and thereby produces an injury which cannot be relieved by an appeal, it would seem that the chancellor ought to intervene to the extent of protecting the objecting party from the consequence.
There may be other cases in which the chancellor ought to act, but I cannot discover any.
The cross-petition stated two grounds of complaint, but based its prayer for relief upon a single one of those grounds. On application it wou have been proper to have permitted an amendment of the prayer and to have proceeded with the cause. Divorce act of 1902, section 15, ubi supru. Whether such an amendment would have enabled defendant's counsel to present the contention be desired to make may be doubtful. Perhaps an amendment of the answer to the original petition might have been required.
But if such amendments as were required had been applied for and allowed, it is obvious that two questions, both of which are novel and important, would have been presented, viz. :
First. Whether or not relief by a decree of divorce can be asked for in a petition upon two distinct and unconnected causes where the decree is identical, and this question would be raised by the answer in the nature of a demurrer of the petitioner; and
Second. Whether a decree for divorce based upon impotence is, under our revised Divorce act, a decree which avoids and nullifies the marriage ab initio. It is in respect to this latter question that defendant claims she was injured by the course of the trial. Her contention is that if she had been permitted to go to a trial upon her cross-petition, and had established the fact of such' impotence as was alleged therein, there would have been no ground to dissolve the marriage for a matrimonial offence.
These important questions were never presented to the vicechancellor so as to require his action thereon. No amendment was asked, and the vice-chancellor struck out the statements of the cross-petition on the motion of the petitioner's counsel, which he was justified in doing if they were superfluous, and presented no matter of fact on which the relief pravert for by the (ross-petition could be founded.
The result is that I am unable to discover any injury to defendant in the course the trial took which may not be remedied on appeal. The conclusion of the vice-chancellor on the issue tried I will not review, but must assume that to be correct.
The issue presented by the cross-petition when ihe matter of impotence was excised was upon the charge of desertion. The relief obtainable under the original petition and the crosspetition was plainly identical, viz., the dissolution of the marriage tie.
Under such circumstances I can perceive no injury to the defendant in declining to hear and determine the sole issue presented by the cross-petition after trying and determining the issue presented by the original petition. It is suggested that it would be more convenient for the defendant, if she takes an appeal, to have both cases before the court of appeals at the
same time. This may be so, and both issues could have been tried together, as was done in Osborn v. Osborn, ubi supra, but I do not think that any inconvenience which may result is an injury to the defendant that may not be redressed by an appeal, for if the defendant appeals, and is successful, the cause will be remitted and the undisposed of issue will be tried.
The motion will be denied, and the decree advised will be signed.
[Submitted May 9th, 1903. Decided October 17th, 1903.
Filed July 9th, 1904.)
1. In case of the dedication of a square to the public, while the bare legal title remains in the dedicator in trust for the use expressly or impliedly declared in the dedication, the right of possession vests in the municipality, which holds a sort of secondary title in trust for the purposes of the dedication.
2. The owners of lots bounding on a public square have a private right, over and above that of the public at large, to have the square kept open.
3. The filing in the county clerk's office of a map, platted into streets and lots, surrounding an open square marked "Liberty Place," in the centre of which a pond was marked, trees being designated around the edges, and the selling of the lots by reference to the map, constituted a dedication to the public as an open pleasure ground, which did not extend to the use of the square by the municipality for a public building.
1. The legislature has no power to alter or extend a dedication of a public square, as against one owning lots bordering thereon, and sold to him with reference thereto.
J. P. L. of 1866 p. 521 ch. 21.), authorizing a town in which a square surrounding a pond had been dedicated to the public to fill up the pond, grade and improve the property, and continue a street over and through it, and providing that such square should be town property, gave no power to the town to erect a building on such square.
6. The wrongful erection of a building by a town on a square dedicated to the public is a breach of the trust under which the town holds the
Fessler v. Town of Union.
property, of which it can take no advantage unless acquiesced in by the estui que trust.
7. Consent by a property owner to the erection of a building on a public square cannot be construed as a consent to the erection of other buildings thereon.
S. An encroachment on a public square is an offence punishable by indictment only, and one of the public cannot maintain an action or suit therefor unless he is individually and peculiarly injured thereby.
9. The owner of lots fronting one hundred and fifty feet on a public square, whose house lot is within thirty feet of a bell tower wrongfully erected by the municipality, to be rung in case of fire, suffers a peculiar and individual injury thereby, such as to enable her to maintain an indiridual action therefor.
10. The fact that adjoining lot owner's similarly situated have not joined in such owner's suit, nor brought suit on their own account, does not prejudice her rights.
11. A lot owner who suffers a peculiar and individual injury by the wrongful erection of a tower on a public square by the municipality, may maintain an action against such municipality on account of its breach of trust in that behalf.
12. A municipality, cognizant of its lack of right, advertised for the construction of a tower on a public square without notice to an adjoining lot owner, who was incapacitated to transact business for herself. Her agent had no notice of the proposed action until material was brought on the ground, when he at once protested verbally and promptly employed counsel. The contract for the erection of the tower was dated February Sth, 1901, and filed with the town clerk February 19th, and the materials for the tower were probably not brought to the square for some time. The preparation of the bill required considerable investigation and compilation, but was filed, with affidavits, as soon as possible under the circumstances, viz., April 10th, 1901.-Held, that the bill was filed with reasonable promptness.
13. A property owner suing a municipality for the wrongful erection of a tower on a public square, and praying for its removal, with other relief, is entitled to a decree for the removal of the tower, it being an inexpensive one, capable of removal and re-erection without serious injury.
The object of this bill is to restrain a nuisance in the nature of a purpresture. It is also, in effect, a bill by a cestui que trust to restrain a breach of trust by a trustee.
The complainant is the owner of ten lots, each twenty-five feet by one hundred feet, and each facing on Franklin street, in the town of Union, in the county of IIudson. The rear of six of which lots, and also the rear of two other lots of the same size which do not face on Franklin street, she alleges bound
upon a public square which was dedicated to the public by the owners of a tract of land which comprised the complainant's lots, and many others in the neighborhood, by the usual mode of laying the plot out in streets and lots, filing the same in the county clerk's office and selling and conveying lots by reference to the map.
On that map appears i plot of land not laid out in streets, but so marked as to dedicate it to the public.
(A copy of so much of that map as comprises the plot in question and complainant's holdings is annexed.)