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 [23]*23purpose 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 %vay 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 Vr.) 608, the effect of the word “park,” being written on the face of a map, was discussed, and Mr. Justice Beed, speaking for the court of errors and appeals, uses this language:
“Had the word ‘square’ been upon the map, I suppose there [24]*24would 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 k square or block upon which is marked ‘Park/ ”
In Bayonne v. Ford, 43 N. J. Law (14 Vr.) 296, Chief-Justice Beasley uses the following language: “It was truly said that when a dedication of this kind obtains, the local corporate authorities lake 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, oven 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 [25]*25Company, 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 úse, as was found by the trial judge in accordance with the cases in this state ■respecting the dedication of lands to public uses.”
The ease 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,
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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 [23]*23purpose 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 %vay 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 Vr.) 608, the effect of the word “park,” being written on the face of a map, was discussed, and Mr. Justice Beed, speaking for the court of errors and appeals, uses this language:
“Had the word ‘square’ been upon the map, I suppose there [24]*24would 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 k square or block upon which is marked ‘Park/ ”
In Bayonne v. Ford, 43 N. J. Law (14 Vr.) 296, Chief-Justice Beasley uses the following language: “It was truly said that when a dedication of this kind obtains, the local corporate authorities lake 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, oven 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 [25]*25Company, 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 úse, as was found by the trial judge in accordance with the cases in this state ■respecting the dedication of lands to public uses.”
The ease 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. Yot being able to agree, the city sued out a writ of habere facias possessionem and the church applied for an injunction.
Chancellor Zabriskio lays down the precise rights and estate ■of the original dedicator, the city and the public, as follows:
“The title or fee of tire 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 ¡lower 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 oivners of the surrounding lols have the right as appurtenant to their lots to have [26]*26this square Jcept 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 oivned 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 Zabrislde, 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 tire 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. Gowen and Bagg, reported in 4 Paige 510 (at p. 514, bottom, and p. 515, top).
TJpon 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 [27]*27original dedication, since such continuation does not affect the questions here involved.
Yor does the declaration in the statute above cited, “that the pond and property surrounding the same shall also be town property,” add in the least to the rights of the defendant.
It is a fundamental principle underlying all the eases above cited that the dedication once clearly made is irrevocable and unchangeable.
If, as I hold, the defendant was without authority to erect buildings on the square, then their so doing was a breach of the trust on which it held the right of possession and control of this property;' and it is hardly necessary to say that the law ought to be, and is, that a trustee shall not be permitted to gain any advantage or increase his power by a breach of his trust unless it be, and that necessarily to a limited degree, where the breach has been approved and acquiesced in by the cestui que trust.
Here, at the request of the cestuis que trustent, all the buildings have been removed from the square with one exception, that of the hose house. Granting that for present purposes the complainant should be held to have acquiesced in that erection, yet it is quite clear, on general principles, that such acquiescence does not extend a hair’s breadth beyond its actual limits on the ground.
A consent to the erection and maintenance of that building cannot by any correct principle be held to be a consent to the erection of another building in a different place. This seems too plain for argument.
We come, then, to the question of the complainant’s standing in this court.
The general rule is that any encroachment on a public highway or public square is an offence against the public, punishable by indictment only, and that one or more of the public cannot maintain an action at law or in equity therefor unless he is so situated as to be injured thereby in a manner and to an extent peculiar to himself as an individual as distinguished from-himseif as a member of the public at-large.
The complainant is the owner of ten lots, comprising a [28]*28boundary on the square in question of one hundred and fifty feet in the immediate neighborhood of the tower in question. It is within thirty feet of her house lot, and the existence in that place of the tower and the ringing of the bell in case of fire will, in my judgment, produce an effect injurious to the enjoyment of her property, different in a marked degree to that of the inhabitants 'generally of "the town of Union, which is a closely built town of from fifteen thousand to twenty thousand inhabitants.
There may be a few other lot owners in the immediate vicinity who are interested in the same degree, or nearly so, as the complainant, and they may have tire same standing as the complainant, but the fact that they have not joined in this suit, or brought a suit on their own account, cannot prejudice the rights of the complainant, if those rights are, as I suppose them to be, peculiar to her by reason of her vicinity to the square.
But, of course, if I am right in my conclusion that she has, by reason of her owning lands bounding on the square, a right in the nature of a private right, then she has a right in addition to her being a member of the public, which dispenses with the necessity of resorting to the doctrine of peculiar injury-
Next as to her right to maintain an action against a municipality.
No point was raised by counsel for defendant that his client was entitled to any immunity from action if, in point of fact, its action was unwarranted in law; and no case was cited by counsel on either side bearing precisely on this point, nor have I been able to find any.
Moreover, I find no case, in this state at least, where the municipal authorities have ever been charged with a breach of their trust in that behalf.
But I think, upon general principles, the complainant must have a right of equitable action, otherwise the inhabitánts not especially interested in the existence of that square might unite and elect a common council which might be so far recreant to its duty and regardless of the rights of the landowners as to [29]*29obliterate the square absolutely and devote it to business purposes.
Has the right of complainant been lost by laches in filing her bill?
■ The municipal • authorities, being fully aware of their lack of right in the premises, proceeded without notice to the complainant to advertise in the public prints for bids for the erection of the tower in question. It does not appear, and there can be no presumption, that complainant saw any of those advertisements or had any notice of them. At that time she was an invalid. Her son-in-law, who lived with her and looked after her business, swears that he had no notice of the action of the municipality until he saw some of the material brought on the ground. He then, as above stated, protested verbally and employed counsel promptly.
It. appears that the contract for the erection of the bell-tower was dated February 8th, 1901, and was filed with the town clerk February 19th, 1901. The tower was a skeleton constructed of iron, and its several parts undoubtedly were cut and shaped and prepared to be assembled before they were brought on the ground, so that it must have been some time later than the date and filing of the contract before they were seen by Mr. Worth.
For some reason, which may be inferred, Mr. Euss declined to proceed.
Messrs. Crouse & Perkins took up the case and prepared their bill and affidavits as soon as the circumstances would permit.
The preparation of the bill required considerable investigation and compilation and necessarily occupied some time. It was filed April 10th, 1901.
I think the bill was filed with reasonable promptness.
An application was made for an injunction, but before the order to show cause could be brought on for hearing the structure was partially erected and no restraint was imposed. The order of discharge was made expressly without prejudice to the complainant.
The prayer is that the materials of the tower may be removed from the ground and for other relief.
[30]*30It appears that the structure is not an expensive one and that it may he taken down without serious injury to its parts and' removed and re-erected in another place.
I think that the complainant is entitled to a decree against the municipality providing for the removal of the tower and of all its constituent parts, and that she is entitled to recover her costs besides a reasonable counsel fee, which I shall fix upon hearing parties.