
    Elliston P. Morris v. The Sea Girt Land Improvement Company.
    The defendants sold certain lots to complainant and others, adjoining a park of about twenty acres, laid out and dedicated by them, the deeds thereof conferring on the lot-owners “the free use and enjoyment of the park in common with other lots at Sea Girt, and a passageway therein for foot passengers only, forever; ” afterwards the complainant was, by deed, given “ the full right and privilege to have and use a carriageway * * * to and from the rear of his lots * * * into and through the park.” The complainant has built upon and graded and improved his lots. — Held, that, on his application, the defendants should be perpetually enjoined from opening a highway across the park and from destroying the trees and shrubbery therein, and from laying it out into building lots and selling them.
    Bill for relief. On final hearing on pleadings and proofs.
    
      Mr. P. L. Voorhees, for complainant.
    
      Mr. A. G. Piohey, for defendant.
   The Chancellor.

The bill is filed to restrain the defendant, the complainant’s grantor, from opening any streets or avenues through what is known as Crescent Park (a plot of about twenty acres, dedicated by the defendant to public use for a park) at Sea Girt, or using the park or any part thereof as a public highway; and from cutting and removing any timber, trees or shrubs growing or being in or upon that park, and from in any way destroying, defacing, marring or impairing the park or any part of it, and from using it or any part of it for any purpose inconsistent with its use as a park or pleasure-ground. No question is made either as to the dedication of the park or the use to which it was dedicated, but the complainant’s statements on that subject in his bill are admitted to be true. The bill was filed by Hibberd Yarnall and the complainant, Elliston P. Morris, as owners of different lots adjoining the park. Mr. Yarnall died, and it was ordered that the suit proceed in the name of Mr. Morris. In 1875, the defendant conveyed to the latter two lots of land at Sea Girt, each fifty feet front on the street or avenue then called Atlantic Boulevard (then of the width of one hundred and fifty, feet) by two hundred feet in depth to the before-mentioned park. By the deed, the right is given to the “free use and enjoyment of the park in common with other lots at Sea Girt, and to a passageway therein for foot passengers only, forever.” Mr. Morris built an expensive house upon his lots, and has expended a considerable sum of money in grading and improving them. After he had built his house the defendant, with his consent, changed the plan of laying out its property but not affecting the park. The alteration involved the narrowing of Atlantic Boulevard (now called Atlantic avenue) fifty feet, for the benefit of the defendant, so as to render it less expensive to keep in repair. The fifty feet in front of the complainant’s lots were to be given to him, and among the other considerations for his consent to the change was the provision that he should have the right to a carriageway instead of a foot-way into the park. The fifty feet were conveyed to him accordingly by a deed from the defendant in 1879, by which there was granted to him and his heirs and assigns forever, the “ full right and privilege to have and use a carriageway or a way on which to drive and use carriages and vehicles, along and upon, to and from the rear of his lots or either of them into and through the park.” The bill states that the defendant has resolved to destroy the-park and lay it out in streets and avenues and building lots, and sell and convey those lots for building purposes, and with that view had, when the bill was filed, caused a new map of its property to be made, showing the lands which constitute the park laid out in accordance with that design, and had, within a few days before the suit was commenced, by its officers, beguo do cut down the trees on the park and open one or more of the streets laid down on the new map.

The defendant, by its answer, says that that map was made solely for the purpose of improving and beautifying the park, and to see how it could be improved as a park or pleasure-ground, and with no intention of carrying out the plan which it exhibited without the consent of all the lot-owners interested. It denies that it shows the land in the park laid out into building lots. It admits that the defendant has cut and cleared off some of the scrub pines and cedars in order to open a street or avenue extending Eirst avenue through the park in a straight line but not the whole width of that avenue. It denies that this would injure the park, but' claims that it. would add to its beauty and to the value of the lots adjoining the park. It alleges as a reason for the extension that the roads in the park, which are tortuous, are dangerous, because of the very short curves therein, in turning which it is said vehicles coming from opposite directions at the same time and meeting there are, because the drivers thereof are hidden from sight of each other by the shrubbery in the park, until they arrive at the curves, liable to collide with each other.

There appears to be no room to doubt that the defendant desires to destroy the park. Though its secretary (who told Mr. Morris, as the latter swears, that he Avas the chief officer of the company, and was the chief stockholder therein) testifies that it had no intention of opening First avenue through the park, and says that the cutting down of. trees was merely to enable a surveyor to run his lines, that the Avay so cleared was never made in the form of a road, and never was intended for a road, the answer states that the defendant did intend to open that avenue through the park, and that it cut down some of the scrub pines and cedars to clear the land -for that purpose. Mr. Morris swears that some of the trees cut down Avere twelve and others ten inches in diameter, and Avere from tAventy-five to thirty feet in height. Though the answer states that the new map was made merely to shoAV how the park could be improved and beautified and did not shoAV it laid off into building lots, the map which is produced shows the entire ground which constitutes the park laid off into building lots with streets and avenues, and the park is not so much as named thereon. The map is a large lithograph map entitled “Map of Sea Girt, situated in Monmouth county, New Jersey, Chas. E. Ingham, engineer, revised by Fred’k J. Anspach, engineer, 1877.” Nor does there appear to be any ground for the statement that the extension of First avenue was necessary to avoid accidents. If it were, it would not warrant or justify the defendant’s action. The roads are not so laid out in the park that they may not very readily be altered. Indeed, the secretary testifies that people take their own course in driving through the park, taking what road they please, that the drift roads there “run indiscriminately, and the width depends upon the freedom from timber.” No attempt is made to show that, as the answer avers, the extension of First avenue through the park would beautify and improve the complainant’s property. Manifestly it would be very injurious to it. The fact that no .action has been taken by the company in its corporate capacity to make any change in the park is not enough to induce this •court to withhold its prohibition. There is plenary evidence in the answer itself of an intention to do what is apprehended. The answer admits that the defendant undertook to open a highway .across the park, and the evidence shows that the defendant contemplated destroying the park. There will be a perpetual injunction in accordance with the prayer of the bill. Cue complainant .is entitled to costs.  