Ocean Grove Camp Meeting Ass'n of the Methodist Episcopal Church v. Berthall

The opinion of the court was delivered by Garrison, J. In an action of ejectment brought by a municipal body having control of its highways against Sophie W. Berthall, the plaintiff’s case was that the defendant had encroached upon Heck avenue in Ocean Grove by extending her porch into the highway. The defendant’s contention was that the plaintiff could not maintain the action of ejectment because it had vacated that part of Heck avenue upon which her porch was built, and had authorized her to make an exclusive use of the part so vacated. This contention is without foundation. The municipal resolution upon which, it is placed is in no sense a vacation of any part of the highway, or an abandonment of the ordinary municipal control over the rights of the public therein. Under it the defendant acquired no estate and got no right to occupy the land in the street other than as a part of the highway. The fact that by the resolution a strip of the highway was devoted temporarily to purposes of ornamentation instead of travel does not militate against the right and duty of the city to repel an unlawful occupancy. A reading of the resolution makes this clear. The case is ruled by Dummer v. Selectmen of Jersey City, Spenc. 86; Hoboken Land and Improvement Company v. Hoboken, 7 Vroom 540; Price v. Plainfield, 11 Id. 608. Even if the resolution created a right in the defendant in the nature of an easement, the action of ejectment is still the appropriate remedy. Burnet v. Crane, 27 Vroom 285. In the Supreme Court the judgment was sustained upon the additional ground that, assuming the plaintiff’s right to bring ejectment, it must be brought for the whole of the tract in front of the defendant’s lot and could not be maintained for the portion that was unlawfully occupied. This view was [316] tenable only when the plaintiff is treated solely as a lessor and the defendant as a mere lessee. 'When, however, the parties are regarded respectively as a municipal government and an encroacher upon the public highway, the doctrine propounded has no apt application. I know of no rule that prevents a plaintiff in ejectment from suing for less than he is entitled to; and where the defendant is not unlawfully occupying the rest of the tract there is a marked propriety in limiting the locus in quo to the part that has been unlawfully appropriated. The judgment of the Circuit Court is reversed. For affirmance — None. For reversal — The Chancellor, Chief Justice, Dixon, Garrison, Van Syckel, Adams, Bogert, Nixon, Vre-DENBURGH. 9.