1 Robbins. Fessler v. Town of Union. The nuisance of which she complains is the erection of a fire-bell tower on that square and within about thirty feet of her premises. The structure is composed of iron posts, beams and braces. The defendant claims no legal title to the premises on which the fire-bell tower is erected except such as is derived from the same acts of dedication upon which the complainant relies, and a sort of adverse possession or user of some part of the square which, however, does not include the locus of the tower. Some time prior to the year 1852 the land in question was part of a tract of about forty-five acres, the property of the Hudson County Real Estate Company, and was surveyed in that year and laid out in streets, lots, &c., by William Hexamer, who filed in the clerk's office a hand-made map of it March 15th, 1855. This map does not appear to have the clerk's endorsement on it. At the same time there was filed, and so marked by Mr. Gilchrist, then county clerk, a lithograph copy of that map with some additions. These lithographs, as might be expected, were made in great numbers and handed to all purchasers. In fact, a large number, if not all, of the lots were disposed of by a sort of lottery or raffle among the members of the association and the lithographs distributed to them for the purpose of reselling, and all conveyances were made by reference to it. The tract is bounded on the southwest by the Hoboken and Hackensack turnpike, and was laid out in streets at right angles to each other and nearly on north and south and east and west courses, but cutting the Hoboken and Hackensack turnpike at an acute angle. To the northeast of and parallel with that street was laid out a street called Kossuth street, which also cuts the other streets on the map at an acute angle. The lots laid out on the map are nearly all twenty-five feet by one hundred feet in size, and are all separately numbered on the map, and the evidence indicates that the town has been built up in accordance with that map. On that map one of the streets, running north and south, was Fessler v. Town of Union. 67 Eq. called Hutton street (now called New York avenue); another, running east and west, was called Franklin street. One hundred feet south of Franklin street, on the east side of Hutton street, was left on the map an open space one hundred and fifty feet wide, three hundred and thirty feet along on the east side and two hundred and twenty feet along on the west side next to Hutton street, making an acute angle at the southeasterly corner thereof. On this space on the map is laid down a small lake shaped like an elongated egg, and extending from about seventy-five feet from the southeast corner to within about forty feet of the northwest corner and marked "Indian Pond," and southwest of it is printed the words "Liberty Place." In the northeast corner, between the pond and the angle, is laid down a small triangular plot, as if for a flower-bed. Kossuth street, if its lines were continuous, would cross the pond diagonally. In nearly the centre of the lake is marked an island with a tree on it, and on each side and on the southerly end a row of trees is marked. On the hand-made map the pond is somewhat smaller and does not extend so far to the southward, and no trees are laid down on it except one on the island, and no mark of a triangular inclosure is found to correspond with that on the lithograph. The proofs show that there was at the time of the making of the map, and for years afterwards, an irregularly-shaped pond of stagnant water, which varied in depth and size with the condition of the weather. The drainage was to the southward, and the ground to the north and east of it was comparatively dry and solid. At the time of making the map and selling therefrom there were no trees except that on the island in the middle of the pond. Most of the lots owned by complainant face on Franklin street and six of them abut in their rear on this vacant lot. There was also laid out on this map, on the east side of the said square, seven lots, numbering from 429 to 435, inclusive, of which lots complainant owns 429 and 430, which are immediately in the rear of four of the lots which she owns facing 1 Robbins. Fessler v. Town of Union. on Franklin street. These seven lots did not front on any street and, with the exception of number 435, had no outlet on any street, and the only access to them from the public highway was over this square. Of these lots numbers 431, 432 and 435 were conveyed by the Hudson County Land Company to several purchasers by a description which expressly bounded them on "Liberty Place." On the 15th of June, 1857, the Hudson County Real Estate Company made a lease to John Ehlers, by which they demised and let to him the square in question by the following language: "All that certain lot, parcel or tract of land and land under water situate in the township of North Bergen aforesaid, and which on a certain map of property belonging to the said The Hudson County Real Estate Company, made by William Hexamer and duly filed in the clerk's office of the said county of Hudson on the fifteenth day of March, A. D. 1855, is marked, designated and laid down as Indian pond, together with the land and premises surrounding said pond, and unnumbered and not laid out into lots as shown on said map, a part of which is known and designated as 'Liberty Place,' bounded westerly by Hutton street, northerly by lots No. 378, 379, 380, 381, 382 and 383; easterly by lots No. 429, 430, 431, 432, 433, 434, 435 and 476, and southerly by lots No. 474 and 475, as said street and lots are laid down on said map, respectively, excepting and reserving to the said parties of the first part, out of the said premises above described, a space of twenty-five feet wide immediately along the line of said lots above mentioned for a public road, so as to allow a public way all around said pond, which public way is to be immediately adjoining the lots above mentioned," for the term of ten years at an annual rental of $30, to be paid "to the trustees of School District No. 6 in said township for the time being for the use and to be applied by said trustees for the education of poor and indigent children at Union Hill in said township," with privilege of renewing for ten years. In 1856, after the raffle had taken place and many of the conveyances made, two common law judgments, aggregating less than $2,000, were recovered against the Hudson County Real Estate Company and all the premises comprised in the map were sold at sheriff's sale on or about December 20th, 1859, to Frederick Baare, Jacob Schweitzer and John Ehlers, in whom, or their survivors, the record title to the park in question is now vested. Fessler v. Town of Union. 67 Eq. They subsequently made conveyances to the holders of title to such of the lots as had been disposed of by lottery upon payment of a small sum of money by each. The probability is that this was done to cure any defects which might have arisen in the title by reason of the decision of the court of errors and appeals in Wooden v. Shotwell, in 1854, reported in 23 N. J. Law (3 Zab.) 465, and same case, affirmed on appeal, 24 N. J. Law (4 Zab.) 789. The town of Union was incorporated in 1864 by an act of the legislature, approved March 29th, 1864. P. L. of 1864 p. 561 ch. 330. In 1866 the legislature passed a supplement to that act, which supplement was approved March 20th, 1866. P. L. of 1866 p. 521 ch. 214. Section 13 of that supplement provides as follows: "That the said council shall also have power and authority to fill up the pond and grade and improve the property surrounding the same, as the same is laid out and designated on the map entitled map of the property belonging to the Hudson County Real Estate Company, known as Union Hill; the said pond known as Indian pond, and certain property surrounding the same, having been laid out on said map for public use, and, in case said council think proper so to do, continue Kossuth street through and over the same; and the said pond and the property surrounding the same thus laid out for public use shall also be town property." The authorities of the town, some time prior to the year 1891, had granted leases or permissions to various persons to erect temporary buildings on some portions of the square, and two small structures were erected immediately in the rear of complainant's dwelling, which, it is proper to observe, occupies a portion of the fourth lot to the east of Hutton street, or New York avenue, the three adjoining lots to the west thereof being used as a yard. Some time after the year 1891, as the result of a petition of the property owners, including the complainant, all those temporary buildings were removed, leaving the square originally laid out entirely free from the encumbrance of any building with an exception presently to be stated. The pond was more or less obliterated, and Kossuth street was extended through it, thus 1 Robbins. Fessler v. Town of Union. bisecting the square and leaving much the larger portion thereof between that street and the rear of complainant's property. The title to the lots owned by complainant was vested in her husband in 1884 and came to her by his will in 1887. In the year 1891, the defendant, being desirous of erecting a building for fire department purposes, determined, if practicable, to place it on this "Indian Pond" lot. Objection was made by complainant through her son-in-law, Mr. Worth, who attended to her business, the complainant being unaccustomed to business, besides being in feeble health. The defendant consulted its counsel, Mr. Russ, who prepared an elaborate and well-considered opinion, coming to the conclusion that the defendant had no right to place any structure on the square. Nevertheless the defendant decided to proceed with the building, if no one objected, and it succeeded in obtaining Mr. Worth's consent, upon condition, as he swears, that the erection should be temporary in its existence. The result was that a hose house about twenty-five feet wide by forty feet deep was erected on the east side of New York avenue, thirty feet south of complainant's property. Affairs stood in this condition until the winter of 1901-1902, when the defendant determined to erect the fire-bell tower now in question. It was erected fifty feet in the rear of the hose company house and thirty feet distant from complainant's rear line and almost directly in the rear of her dwelling. There is no proof that complainant had the least notice that defendant intended to erect this building until her son-in-law saw the material (mainly iron beams, ready to be assembled) brought upon the ground. The exact date is not given, but the contract was accepted February 19th, 1902. He immediately protested to one or more of defendant's officers, threatened a suit, and called on and attempted to employ Mr. Russ, who was not then town counsel; failing in this, he applied to and retained Messrs. Crouse & Perkins. They, as soon as practicable, prepared a bill and affidavits and applied to this court for an injunction, but as the building was partly constructed before the application was made the court declined to impose an interim restraint and the case was brought to final hearing. |