
    HARVEY I. TWEDDELL ET AL., PROSECUTORS, v. VILLAGE OF SOUTH ORANGE, RESPONDENT.
    Submitted December 2, 1920
    Decided February 3, 1921.
    1. The practice is firmly settled that the- Supreme Court in bane will entertain an application for allowance of a writ of certiorari after the refusal of an allocatur by a single judge of the court, when the substantial rights of the party appear to be involved and the party is not barred by laches or some similar reason. Key v. Vaul, 01 N. J. L. 133, explained.
    2. A single justice of the Supreme Court acts, normally, as a single justice and not as the court itself, in awarding and determining a rule to show cause why a writ of certiorari should not be allowed.
    3. On the question of dedication as a public highway of a street about four hundred and twenty-five feet long, connecting two other streets, where it appears without dispute that various owners for the time being of the land on both sides of such alleged street had made conveyances to purchasers bounding the property upon and running it along said street without any reservation or declaration that it was not intended thereby to dedicate it and that such conveyances embraced the whole of one side of the street and two-thirds of the other side, held, that such street was effectually dedicated as a public highway.
    4. Where there has been an actual dedication it may be accepted by the public at any time, and mere delay, however long, does not impair the right.
    ñ. The annual taxation of dedicated lands by the municipal authorities is no estoppel against a subsequent acceptance of such dedication.
    6. What passes normally by the act of dedication and acceptance of land as a highway is the right of public user; the fee subject to such user remaining in the dedicators and those holding under them.
    On application for a. writ of carliorari to review report of the board of assessments of the village of South Orange assessing damages for the taking of lands for the opening of a street to be known as Fifth street. • ■
    Before Justices Swayze, Paiíkjkr and Black.
    
      For the prosecutors, Memit Lane.
    
    For the respondent, Adrian IUker.
    
   The opinion of the court was delivered bjr

PARKER, J.

We gather from the briefs of counsel that application for this writ was made, in the first instance, to 'the Chief Justice, and that allocatur was denied by him. Prosecutors have thereupon come to the court in banc, following the practice recognized in such cases as Key v. Paul, 61 N. J. L. 133. Defendants object that that decision is not applicable on the ground that the allowance of a writ of certiorari is discretionary, and that Ivey v. Paul excludes that class of cases; but we think they have mistaken the purport of that decision. The opinion says that when the motion appeals merely to the discretion of the judge and does not involve the substantial rights of the parties, the court will usually not review his action.

' In the present case the question is whether the prosecutors have a substantial right which would be affected by the refusal to allow, a writ; and as their claim is that the defendants have undertaken to'take land or an easement in land belonging to them' without making any compensation whatever for the same, it is plain that if they are entitled to compensation, as the}’- say they are, a substantial right has been affected. Hardly a term passes in which no application is made to the court in banc for the award of a certiorari after the refusal of an allocatur by a single judge; the practice is firmly settled.

The next objection to the allowance of the writ as a matter of practice is that the Chief Justice, in entertaining the application, was sitting, under the statute, as the Supreme Court. But there .is nothing at all in the case before us to indicate this. So far as we can gather from the briefs, the Chief Justice made a rule to show cause returnable before himself why a writ of certiorari should not be allowed; and at or after the return of the rale concluded to deny the allocatur and, accordingly, discharged the rule. This also is every-day practice, and it has never been intimated so far that a single justice was sitting as the court merely because, instead of awarding an allocatur or denying it, he chose to have the matter exploited by a rule to show cause. This reason, also, is without substance.

The cases cited by the defendants such as Dubelbeiss v. West Hoboken, 81 N. J. L. 98, are cases where certiorari was heard on final hearing and after allowance under section 5 of the Certiorari act. Comp. Stat., p. 403. The third point of practice urged against the allowance of the writ is that after the award was made and which award provided that the prosecutors were not entitled to any compensation for the appropriation of their land as a public street, they appealed the matter to the Circuit Court of the county of Essex, and that appeal is still pending. As to this our view is that the appeal lo the Circuit Court is normally upon the question of how much damages the prosecutors are entitled to and not, as in the present case, as to whether they are entitled to any damages at all, or are barred, as the defendants claim, by dedication of the lands taken.

We come, therefore, to the merits of the controversy. The ground on which all compensation was refused to the prosecutors by the commissioners for the municipality was that they, or those under whom they claim, had some years since dedicated the lands lying within the lines of the new: street called Fifth street to the public use, and that in such case they are not entitled to any compensation when the public accepts the dedication and undertakes to open the street. This is the rule settled by the leading case, among others, of Clark v. Elizabeth, 37 N. J. L. 120, 126; affirmed, 40 Id. 172. If these lands were, in fact, legally dedicated and accepted, there should be no allocatur.

The fact of dedication appears to be perfectly clear upon the uncontradicted affidavits in the case, the lands taken consisting of a strip fifty feet wide and about four hundred and twenty-five feet long, running northwesterly, substantially at right angles between Prospect street on the southeast and Academy street on the northwest, through a considerable tract of .land which, in the decade between 1870 and 1880, to speak without precision, was owned by Charles E. Gardner. Gardner subsequently transferred ownership to his wife, and during the period when he or she owned the property, various deeds were made by them to purchasers of portion's of the tract. The affidavit on the part of the prosecutors states that the claim of dedication by the village was based upon the language of a deed from Gardner to David B. Muchmore in 1873, containing an agreement that Gardner is to open a new street fifty feet wide, making the lot conveyed a corner lot, fronting on Prospect street and said new street, such new street to be opened by said Gardner from Prospect street to the west corner of the above-described lot in one year from the date of said conveyance. The affidavit does not state the description of the lands conveyed, nor does it appear elsewhere in the case. The affidavit does state that “there were other, deeds for other tracts which contained the same general provision.” This, however, seems not quite ingenuous, for an examination of the affidavit of defendants’ title searcher discloses that the provisions were quite different. In 1875. Gardner and wife conveyed to Emma C. Gardner a tract beginning at the intersection of the southeast side of Academy street with the southwest side of Fifth street; thence, along Fifth street southeasterly one hundred and fifty feet; thence parallel with Academy street one hundred feet; thence parallel with Fifth street one hundred and fifty feet to- Academy street, and thence northeasterly to the'beginning. This.mentions Fifth street three times and without any reservation whatever .with regard to- dedication or any intimation that it is intended for purposes of location only.

In 1879, Gardner and wife conveyed to William McCalluih a lot exactly opposite the foregoing on the easterly corner of Fifth and Academy streets by substantially the following-description: “Beginning at the easterly corner of Fifth and Academy ’streets; thence northeasterly along Academy street two’ hundred and fifty feet;' thence' southeasterly parallel with''Fifth ’street' one hundred - and .fifty feet; thence sorl'th-wletteidy- parallel with Acaderiiy streét two hundred and fifty I’eet; thence (4) with (along) the northeasterly line of Fifth stieet one hundred and fifty feet to the beginning.”

On December 24th, of the same year, Mr. and Mrs. Gardner conveyed to Sarah J. Gardner, probably their daughter or other relative, all, the lands in the block between Fourth, Fifth, Academy and Prospect streets not theretofore conveyed by them to outside parties, and the description runs, for one hundred and thirty feet northwesterly along the northeasterly side of Fifth street to the southerly corner of the MeCallum lot. There is, therefore, unequivocal recognition of Fifth street along its northeasterly line for two hundred and eighty feet from Academy street, leaving unaccounted for only about one hundred and forty feet between the end of this two hundred and eighty-foot line and Prospect street.

The next year, Sarah J. Gardner conveyed two tracts to Catherine A. Gardner, wife of Charles E. Gardner, the first tract being called "Residence Prospect Street, Fourth Street, Academy Street and Fifth Street lots.” This tract is described in the same terms as the last preceding deed to Sarah J. Gardner. The next tract is called "Fifth, Academy and Prospect street lots, beginning at the easterly corner of Emriia ('. Gardner lot on the southwesterly side of Fifth Street, thence with said side of said street south 50 degrees 15 minutes, cast 27(1 feet more or less to the northwesterly side of Prospect Street;” thence with Prospect street southwesterly and northwesterly and hack by various courses to the beginning. It appears, therefore, that those last deeds embrace the entire frontage on the southwesterly side of Fifth street from Academy street to Prospect street.

The law applicable to a situation like this is not in doubt in this state, and we deem it unnecessary to multiply citations of the cases. Lt is sufficient for present purposes to cite the ease of the City of Camden v. McAndrews & Forbes Co., 85 N. J. L. 260, decided by the Court of Errors and Appeals in 1913. In that case several phases of the doctrine of dedication were discussed as, for example, the making and filing of a plat or map by an owner with streets laid out thereon, the making of deeds by an owner hounded by or including land called in the deed a street and without any reseTvations as to its public use; the combined use of the map and the designation in the deed; and finally the mere acceptance from a former owner of a deed describing the property in terms of the street. The trial court in that case nonsuited the city claiming the lands by dedication, and the nonsuit was sustained in all points except with respect to a tract of land not dedicated by map, but named a-s a street in the deed under which a former owner took title. That mention and recognition was held to be conclusive upon the defendant in the cause, and that the city was entitled to recover so much’ of the land within the lines of the street so named as had been conveyed to the defendant by the deed in question; and this decision was rested, in large measure, upon the language of Clark v. Elizabeth, supra.

Applying this rule, and noting once more .that deeds conveying lands bounded by the lines of Fifth street have referred to Fifth street as apparently a public highway without any reservations for its entire length on the southwesterly side and for two-thirds of its length on the northeasterly side, there seems to be no debatable question but that under the .decisions of the courts of this state, Fifth street was thereby irrevocably dedicated for public use as a highway between Academy street and Prospect street.

But the prosecutors claim that assuming an original dedication, the rights of the public to take advantage of it have been lost. Counsel frankly admits, to use the language of his.brief, that where there has been an actual dedication, it may be accepted by the public at any time and that mere delay, however long, does not impair the .right; and it does not seem to be disputed that the resolution or ordinance of the village of South Orange, whatever the municipal action may have been, for the taking of the land within the lines of Fifth street as a public highway, operated as an acceptance by the public so as to make the dedication complete. It is said that the action of the municipality in 1905 amounted to a declination to take the land and so brought the case within the lines of the leading case of Newark v. Pennsylvania Rail road Co., 86 N. J. L. 575. In that case, however, there appeared to have been a solemn contract in writing and under seal between the railroad company and the city with regard to track elevation, which contract was expressly authorized by act of the legislature, which the Court of Errors and Appeals held estopped the city from thereby claiming that a previous dedication might be enforced. No such circumstances exist in this case. All that we understand is claimed is “that the action of the Board in 1905 amounted to a rejection.” The brief does not explain what this action was, but we gather from the affidavit of the prosecutor that about that time the owner made an agreement (whether in writing or not does not appear) that he would put a drain through from Prospect street to Academy street to care for the storm water, and that, at the same time, the village authorities abandoned a proposed ordinance to open the street and proceeded to assess the property as building lots. We are quite unable to see any estoppel under the circumstances. Whether the storm water drain was a consideration for the abandonment of the ordinance does not appear. The governing body was entirely at liberty to proceed to open the street at that time or to wait until later on as ii chose, and it chose not to ('pen at that time. The fact that taxes were assessed on the lands and paid by the owners is, in our judgment, of no legal consequence. Taxes are an annual charge for the use of property by the owner for the time being. The position of the prosecutors appears to be that they are not satisfied with the well-settled rules of dedication and acceptance as laid down by the courts of this state, and that they desire by obtaining the allocatur now applied for to carry this question once more to the highest court in this state with a view of overruling the previous decisions. We do not think that the writ of cer-tiorari should run in such a case, where the attempt is substantially to unsettle land titles in every part of the state.

The last point urged for the prosecutors is based upon the common law rule of ownership by an abutting owner of the fee to the centre of the highway. The fee of f lie abutting lauds has passed apparently to other parties. Prosecutors claim, however, to owii the fee within the lines of Fifth street, and to substantiate their claim they argue that under the circumstances appearing in this case, the rule of ownership to the middle of the way (Salter v. Jonas, 39 N. J. L. 469) does not apply; but that if this should be held against them, they are, nevertheless, owners by adverse possession. We find it entirely unnecessary to deal with either of these propositions, because the fee of the land within the street lines is not at all in question. What passes to the public by dedication and acceptance is the easement of user of the land as a public highway and it is for this that the damages would be awarded, if any. Consequently, the question who owns the fee is entirely immaterial for present purposes.

The allocaiur will, therefore, be denied.  