Smith v. State

Carpenter, J.

The defendant below, who is the plaintiff in error, was convicted in the Passaic Oyer and Terminer of a nuisance for obstructing a public highway, being one of the streets in the town of Paterson. Having, in 1849, become by purchase the owner of a lot of ground at the southeast corner of Broadway and Main streets, fifty feet on Broadway by twenty-eight feet on Main street, he erected a building, which it is alleged projects four feet four inches beyond the line of the street first named.

The lot in question is part of a larger lot of ground, fifty feet on Broadway by oue hundred feet in depth on Main street, which, with other lots on Broadway of corresponding depth, was laid off and sold by one Abraham Van Honten. The larger lot spoken of was conveyed, May 1, 1807, by Peter Wilson, then the owner, to one Simeon Van ilouten. It subsequently became the property of one Garrabrant Van Honten, who, March 5, 1821, conveyed it, together with a lot of fifty-five feet front on Main street immediately adjoining, to Andrew Parsons. Parsons had previously bought a lot of forty feet front on Main street, immediately south of the last mentioned lot, so that his whole front on Main street, running south from the corner of Broadway, was 195 feet. He held to this extent from 1821 until December 14, 1835, a period of more than fourteen years, when he sold the whole premises, comprising the three lots aforesaid, for a large price, to Messrs. Pennington, Collet, and others. This property was subsequently divided and sold, the defendant becoming the owner of the corner lot already mentioned.

Broadway, formerly called the old York road, upon which the encroachment was made, had been laid out as a public highway, four rods or sixty-six feet in width, in the mode then provided by statute, as long ago as 1761 ; but there seems to have been some doubt where the true line of the street *138 should be placed according to the original survey. It appeared, however in evidence, that many years ago, more than forty, according to the testimony, a fence stood on the south side of Broadway, where it is now crossed by Main street, which extended a considerable distance eastwardly, in front of and beyond the lot now owned by the defendant. Buildings were subsequently placed on the street in the line of that fence, which was for many years, and until the action of the defendant, treated as the line of the street. Indeed the street was built up in conformity with the line so indicated, and many conveyances by the owners of the adjoining lands were made accordingly. The measurements called for in the deeds referred to, and made by successive owners, were all satisfied by running to the corner of Broadway and Main street, indicated by the fence, and subsequently by the buildings placed in conformity with the same line.

The defendant in this indictment having purchased the lot at the corner of Broadway and Main street, caused the former street to be surveyed. Assuming certain points to be roonu- , ments from which the true line of the street, as originally laid out, could be ascertained, and claiming it to be in a straight line, he carried forward the front of his lot from what had been previously treated as the line of the street, and which was sufficient to satisfy the measurement of his own deed, to a point four feet four inches in advance, and erected a brick -building accordingly. The present indictment was the result of this encroachment.

Upon the trial, the court charged that a public highway in New Jersey might be established, not only by surveyors under the statute, but by dedication, and by an uninterrupted use by the public for more than twenty years. It was submitted to the jury, supposing the encroachment not to be within the original line of the street according to the survey, whether in this case there had not been such use for a long period, with a recognition on the part of the owners of the adjoining land, as would establish the public right. After a recapitulation of the evidence on this point, the court added, that it was shown that the public had used the land where the defendant’s build *139 ing is erected, with the assent of the owners, for more than twenty years, and that, if the witnesses were believed, this established the public right. One of the exceptions to the charge is, that the judge assumed the dedication as a matter of fact.

The opinion of the court upon the weight of evidence, declared incidentally in the course of a charge to the jury, is not strictly the subject of an assignment of error. But whatever may be the rule on this point, which it is not intended to discuss, certainly such remarks can furnish no ground of error where no mistake is made to appear, the charge being supported by the evidence detailed in the bill of exceptions and the directions have led to a proper result. Whether there was any error in the view expressed by the court in the charge on this point, will be better understood after considering the subsequent exceptions taken on the part of the defendant. I think it will be found that the court, in what it actually did say, made no attempt to decide any questionable matter of fact. The court expressed merely the conclusions of the law upon facts proved, and in this it in no way interfered with the province of the jury.

The second exception upon which error has been assigned, is the construction of the deed from Parsons to Pennington and his associates. Parsons held the entire lot, being 195 feet on Main street, from March 5, 1821, to December 14, 1835, when he made the deed referred to. He bought of Van limiten 155 feet on Main street, which, added to 40 before purchased of Winans, made in the whole 195 feet on that street, from the corner of Broadway, as already stated. The court said, “ he bought liis entire front for 195 feet. This is the measurement called for in his deeds. He held that quantity. That, according to his own testimony, was all he claimed or occupied. He measured it repeatedly. Beyond the 195 feet was the street. He never claimed where the street was open and used by the public. On the 14th December, 1835, he conveyed to Pennington and four others for $25,500. The deed describes the laud thus: ‘Beginning on the easterly side of the Paterson and Hamburg turnpike, at the southeast corner of its *140 intersection with Broadway or the old York road, then running south along the turnpike 195 feet to the line of Van Blarcom/” “ Parsons ” (said the court) “ sold for a high price every foot of the land on Main street, it being of great value. The description in his deed to Pennington and others manifestly calls for the course of the street as it actually was at the time. He testifies that he only held to that corner.”

This instruction was correct. It cannot be doubted, upon the evidence in the case, that the measurement given in the description referred to in the charge was made in reference to the corner as it then actually existed at the time of giving the deed, which had always been treated as the line of Broadway, rather than to an imaginary corner, not then known but supposed to be discovered by the subsequent surveying done under the instructions of the-defendant. Wherever the line of the original survey may have been, the corner called for in the deed was in that line which had been located by the adjoining landholders at a point reached by 195 feet from the corner of the lot on Main street, and by 100 feet from the rear of the lots laid off'aud sold by Abraham Van Houten. Parsons, called as a witness, said he had always understood that point to be the line of the street, and had treated it accordingly. Mr. Pennington testified to the same effect. It cannot be doubted that the proper construction was given to the language of the deed, and it is made clear by the testimony referred to. In a matter of location, when the language of a deed is doubtful, parol evidence of the acts and admissions of the parties is always admissible to show the practical construction given by them, and which will frequently conclude their rights. Den d. Haring v. Van Houten, 2 Zab. 68.

The third exception to the charge is, that the court instructed the jury that it was not material where the road was originally laid out, or whether the lines of the street, as occupied, correspond with the lines of the original survey, or whether the road was ever laid out by the surveyors of the highway. The fourth and last exception, which may properly be considered in the same connection, as stated by the defendant in his exception, is, that the court instructed the jury that the acts of the town *141 ship officers in not working the road, and of the overseer of the highways, and of the counsel of the township in not correcting the error (if any actually existed), could not relieve the defendant from liability.

The remarks of the court, to which these exceptions are directed, must of course be considered in connection with the evidence and with the context of the charge itself, and not as mere isolated legal propositions applicable to all cases and under all cireumstauces. If, as admitted, or at any rate proved, the lines of the survey of the road, which had been made nearly a century before, were doubtful and not easily to be ascertained, and the street had been located, and at length actually built up, according to lines adopted or acquiesced in by the successive owners of the adjoining land, and so used by the public for many years, undoubtedly, under such circumstances, the precise location of the survey, as it originally ran, became immaterial. It ought not to be permitted to correct an error, even if one has been fallen into, after forty or fifty years of acquiescence on the part of those interested, and, under such pretence, to encroach several feet upon the street, as it actually exists. Such variance might probably be found in some of the streets of most of our towns, and, if upon resort to the old surveys such course could be sustained, it would produce inextricable difficulty and confusion.

It is said, on the part of the defendant, in the indictments that in regard to the location of boundaries, fixed monuments are to govern, and that mere course and distance must conform ; that the successive conveyances under which he claims, including the deed to himself, call for the line of Broadway, to which his lot must extend, even if more than the distance called for from the corner on Main street. Undoubtedly his lot extends to Broadway, but the dispute is not whether it shall extend to that street or otherwise, but what in this controversy must he considered the line of the street. Is it to he1 that line which has been adopted by the adjoining landholders and acquiesced in by a succession of owners, including those under whom the defendant claims for more than half a centuiy, or that line which might be ascertained by a recur *142 rence to the old survey, to be run and corrected by the aid of the greater skill and the better instruments of the present day ? In my judgment, it will never do thus to tamper with the rights which have grown up for such a length of time by the acts and. under the consent of those interested and the acquiescence of the public. The case was properly put before the jury on the ground of dedication, which may'be conclusively presumed after an uninterrupted use by the public of the ground on which the defendant has placed his building for so long a period with the acquiescence of all concerned. But it might well be put upon the ground sanctioned by this court in the case of Den v. Van Houten (2 Zab. 62), that the practical location of boundaries, upon which others have been induced to act and rights have grown up, shall conclude those by whom adopted, even if erroneous : it will not be permitted to change such location to the injury of others or of the public. Under these circumstances, it became, as was properly said, immaterial where the road was originally laid, or whether the lines of the street, as occupied, correspond with the lines of the original survey. That must be considered as the street which has been so used and occupied by the public for the long period referred to.

It is not necessary here to enter upon the doctrine of dedication. It has however been argued, on the part of the defendant, that it cannot apply to a street laid out under a regular survey, where it is said the right must rest, not on the presumption arising out of user, but on the authority deriv.ed from the statute and defined by the survey. That dedication implies consent, but that a use under the statute rests upon compulsion. It has, however, been held that a highway laid out in the mode prescribed by statute may be widened by dedication. It was so held upon sound reason in the case of Valentine v. City of Boston, 22 Pick. 75 , 79. Whatever attention, therefore, the suggestion may deserve in relation to the weight of evidence in a matter of dedication, it cannot be adopted as a principle of law.

What has been said on these exceptions really covers the whole ease. It is sufficient to say, as to the last exception, *143 which applies to the remarks in regard to the neglect of the town officers, that .they were based upon the assumption that sufficient had been shown to establish the rights of the public, arising out of long continued and uninterrupted user. If the court below was correct in the assumption, unquestionably that right would not be lost by the mere neglect of the town officers in not working the road. The evidence, however, scarcely warrants what is implied by the exception, to wit, that the street .was not worked to the line in question. Whatever may have been the case as to others, one town officer, who was called as a witness, did testify that ho worked the street to that extent.

I am of the opinion that the judgment of the Oyer and Terminer should be affirmed.

The Chief Justice and Justice Ye vies concurred.

Judgment affirmed.

Affirmed, 3 Zah. 712. Cited in Donnelly v. State, 2 Dutch. 471; Wood v. Hurd, 5 Vr. 90 ; Atty. Geni. v. Ileishon, 3 C. E. Gr. 410; Atty. Geni. v. M. & E. 11. R. Go., 4 O. E. Gr. 391; DeVeney v. Gallagher, 5 G. E. Gr. 38.