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Fessler v. Town of Union.

67 Eq.

Mr. Randolph Perkins, for the complainant.

Mr. Frederick Frambach, Jr., for the defendant.

PITNEY, V. C.

Upon these facts the following questions arise:

First. What was the scope and purpose of the original dedication?

Second. Has that scope or purpose been altered or enlarged by either (a) the legislation above cited, or (b) by any subsequent occurrences?

Third. Is, or was, the complainant, at any time, as the owner of lands abutting on the square, entitled to relief against the proposed erection?

Fourth. If so, has she in any manner lost or waived that right?

Upon most of the foregoing questions it seems to me that the law is so well settled in New Jersey as not to admit of doubt.

The leading authority is, of course, the case of Methodist Church, &c., v. Mayor, &c., of Hoboken, 33 N. J. Law (4 Vr.) 13, and the numerous cases which have followed it.

It is impossible to distinguish that case from the present, so far as the dedication goes.

It is laid down as a general rule that the bare legal title remains in the dedicator.

In this case it appears that it remains in the three men who bought in the property, including the square, at a sheriff's sale on a common law execution. They have made no conveyance of the title to the "Indian Pond" lot.

The rule is generally stated to be that while the bare legal title remains in the original dedicator in trust for the uses expressly or impliedly declared in the dedication; in case of the dedication of a street or public square the right of possession vests in the municipality, which holds a sort of secondary title in trust for the purposes of the dedication; and that is the precise position of the defendant here.

No case was cited to me by counsel where the precise scope and

1 Robbins.

Fessler v. Town of Union.

purpose of such a dedication and the duties and powers of the municipality were drawn distinctly in issue, but the subject was treated by Mr. Justice Depue in the Hoboken Case, 33 N. J. Law (4 Vr.) at p. 17. There the piece of land was marked on the map of dedication as "Square" simply, and the learned justice says: "The word 'square,' on this plot of ground, indicated a public use, either for purposes of a free passage or to be ornamented and improved for grounds of pleasure, amusement, recreation or health. That is the proper and natural meaning of the term and its ordinary and usual signification. It is unquestionably true that the owner might, in the act of dedication, have declared the special public use to which he intended to donate the lands, and they would have remained subject to such uses. In this case he has not done it. There was nothing to indicate such special use in the original map. The word 'square,' as a term of dedication, imported a complete and unrestricted abandonment to the public uses above indicated."

Again (at p. 19) he says: "But the power of the local corporate authorities is vested in them only as the representatives of the public and for the protection and regulation of the public use. They cannot sell the lands so dedicated, nor release or extinguish the uses for which they were dedicated, nor employ them in any way variant from the purposes for which they were designed. But within the limits of the purposes and uses for which the dedication is made to regulate the use-the authority of the local corporate authorities is unlimited, against which no mere private right can be set up."

Mr. Justice Whelpley, in Jersey City v. Morris Canal, 12 N. J. Eq. (1 Beas.) 547 (at p. 554), uses this language: "Whenever the public, by an express municipal act, accepts the dedication, the public duty of putting the land to the use to which it was dedicated arises."

In Price v. Inhabitants of Plainfield, 40 N. J. Law (11 Tr.) 608, the effect of the word "park," being written on the face of a map, was discussed, and Mr. Justice Reed, speaking for the court of errors and appeals, uses this language:

"Had the word 'square' been upon the map, I suppose there

Fessler v. Town of Union.

67 Eq.

would hardly have been a contention but that it worked together with the other acts-a dedication. If the words 'public park' had been upon it, no question would have arisen. But a park in a city means to the sense of every person a place open to everyone. It carries no idea of restriction to any part of the public or to any specific number of persons. Restrictions as to time of entrance or behavior of those entering are conceivable, but the idea that any class of the community is to be excluded would not be entertained primarily by any person in connection with the idea of a park within the limits of a city. That it was to be a place of public resort would be the impression which any person would receive by looking at the map in this case, delineating a tract of sixty acres with streets and a square or block upon which is marked 'Park.'"

In Bayonne v. Ford, 43 N. J. Law (14 Vr.) 296, ChiefJustice Beasley uses the following language: "It was truly said that when a dedication of this kind obtains, the local corporate authorities take the interest so created in trust as the representatives of the public, and that they cannot sell the lands so dedicated, nor release nor extinguish the uses for which the dedication was made; and the theory therefore would be utterly inadmissible, even if the fact were that the corporate authorities of Bayonne had laid out the road in question, that thereby they forfeited rights that belonged not to themselves but to the public at large. In point of fact, the street in question was not laid out by the city of Bayonne, but by special commissioners appointed under a special statute. The action of such officers had no effect in the way of destroying the public rights now in question."

Now I think the word "Place," as used here, in connection with the map showing the pond with the trees (which had not yet been planted) about it, had the same meaning as the words "square" or "park."

It was a perfectly clear expression of the purpose of the donors that the space should be used for a pleasure ground for the public. There was, besides this, the evidence of two old gentlemen, who had been members of the Hudson County Real Estate

1 Robbins.

Fessler v. Town of Union.

Company, that such was the intention of the company, as expressed among themselves.

In this respect the case resembles the case of Weger v. Delran, 61 N. J. Law (32 Vr.) 224. There no name was placed on the square, but it was simply not laid off into numbered lots, and there was proof of the dedication of the donor.

The learned judge says (at p. 226): "Although the map did not designate this block in words as a 'square' or 'park,' yet it contained persuasive evidence that it was intended for a different use than that to which the other blocks were designed to be put, and from Bechtold's acts and declarations, which were admissible evidence, there was the plain inference capable of being drawn that he intended to dedicate the block to public use, as was found by the trial judge in accordance with the cases in this state respecting the dedication of lands to public uses."

The case of Methodist Church v. Hoboken, 19 N. J. Eq. (4 C. E. Gr.) 355, arose in this wise: After the decision by the supreme court of the case of Methodist Church v. Hoboken, above referred to, parties interested procured an act of the legislature authorizing the city of Hoboken to purchase from the church the premises in question at a price not exceeding $10,000. Not being able to agree, the city sued out a writ of habere facias possessionem and the church applied for an injunction.

Chancellor Zabriskie lays down the precise rights and estate of the original dedicator, the city and the public, as follows:

"The title or fee of the land is in the complainants. That title is subject to an easement which belongs to the public, which is the right to have it kept open and enjoyed as a public square. The defendants have no estate in it; their only right is the power and duty, as representatives of the public, to see to it that the public are not hindered in the enjoyment of their rights there; and to effect this, they may maintain ejectment against anyone who takes possession of and occupies it to the exclusion of the public.

"The legislature may have the right, so far as the public is concerned, to annul the dedication and yield up the right of the public; but they have no power, if the owners of the surrounding lots have the right as appurtenant to their lots to have

Fessler v. Town of Union.

67 Eq.

this square kept open as a public square, to permit its occupation as against them for a town hall, nor to subject the title or fee, which is owned by the complainants, to a different easement from that which encumbered it when they acquired title.

"If the act of 1868 had unconditionally and immediately authorized the occupation of the tract for a city hall, it would have destroyed the easement of the public and with it the right of the defendants to take the possession for the public."

I think this statement of the law governing the subject is entirely accurate, and I desire to emphasize the distinction made by Chancellor Zabriskie, and which seems to me clearly to exist between the right of the public at large, including all persons who do not have land bounding upon the square in question, and the owners of lots bounding thereon. I am of the opinion, although, perhaps, it is not necessary to the decision of the present case, that the owners of the lots bounding on the square have a private right over and above that of the public at large to have the square kept open. That right is of the same nature as it would be if the original dedicator in making conveyance to the owners of those lots bounding on the square had covenanted that the square should be for public use and that no buildings should be erected thereon. In other words, they occupy the same position that the co-complainant White occupied in the case of Watertown v. Cowen and Bagg, reported in 4 Paige 510 (at p. 514, bottom, and p. 515, top).

Upon principle as well as upon the dicta just cited, I am of the opinion that the dedication in this case was for the purpose of use by the public as an open pleasure ground-a ground with trees and a small lake, if the latter was found desirable and practicable; that the dedication did not include the use of it for a public building, and that the defendant had no right under the original dedication to erect any building upon it.

Further, I deny the power of the legislature to alter or extend this dedication as against the complainant. But, granting that power, I find none in the act above cited, so far at least as to the erection of any building thereon.

It is not necessary to determine whether or not the continuation of Kossuth street through the park was within the

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