though widely separated and affected by intervening physical conditions subjecting them to discrimination, but if such reasons exist, neither the report nor the testimony nor the record present them. The testimony shows that the assessment seems to have been made at times upon a foot frontage basis, and at times upon a mere random method of guesswork, with the supervening result of dis

and Harworth drive, the improvement to consist of the grading and macadamizing of the roadway, and the construction of a concrete curb and gutter. Thereafter the mayor and council passed an ordinance in conformity with the prayer of the petition, and ordained therein that the resulting benefits and damages be assessed upon the property affected in accordance with the provisions of the statute. The improvement having been complet-tributing a known amount of cost upon some ed, the assessors in due course filed their report with the council, and this report furnishes the basis for the present controversy. It was the subject of attack from the time of its presentation, and after protracted hearings upon two occasions was referred back to the assessors for further consideration and suggested amendments.

The ordinance requires an assessment of damages as well as of benefits. This was in compliance with the fifty-eighth section of the borough act (1 Comp. St. 1910, p. 261), which provides, regarding the method of assessment by the commissioners, "said report shall be accompanied by a map showing the lands and real estate taken, damaged or benefited by said improvement, and for which they have assessed damages or benefits."

properties to the practical exclusion of others, and thus practically resulting in violating the statutory mandate requiring a "just and equitable assessment of the damages sustained by, or the benefits conferred upon" the lands and real estate fairly subject to assessment for the improvement. This want of equitable system and method so permeates the entire assessment that nothing can correct its inequalities except an order vacating the assessment as an entirety, and ordering a new assessment to be made in accordance with the requirements of the statute. State (Randolph) v. Plainfield, 38 N. J. Law, 93. Such an order may be entered, with costs.

(85 N. J. L. 278)

BOARD OF TRUSTEES OF VILLAGE OF
RIDGEFIELD PARK v. NEW YORK,
S. & W. R. CO.

[1] The report of the commissioners shows no assessment for damages, but the fact appears to be, as shown by the list annexed thereto, as well as by the record of these (Court of Errors and Appeals of New Jersey.

FICIENCY.

Jan. 29, 1914.)

(Syllabus by the Court.)

In ejectment, plaintiff makes sufficient prima facie proof of title to support the action under whom the defendant also solely claims. by tracing his paper title back to a grantor,

proceedings and the testimony, that there was an element of damages in the improvement which, under the statute, it was the duty of the assessors to distribute over the 1. EJECTMENT (§ 95*)-PROOF of Title-Sufassessable area of the borough in a just and equitable manner. Section 58, Borough Act. Their report speaks only of the benefits which they have assessed, and makes no reference to the element of damages. This was clearly erroneous. The duty of assessing the damages, as well as the benefits of such an improvement, is as mandatory in the one landowner of a sales map or plat showing the The filing in a public record office by a case as in the other, and their report must land divided into blocks and lots with intersectshow that they performed this statutory duty.ing streets, and the sale and conveyance by Hendrickson v. Point Pleasant, 65 N. J. Law, 537, 47 Atl. 465; Town of Bergen v. Van Horne, 32 N. J. Law, 490.

While this error furnishes basis for a vacating of the assessment, it may be well to remark that an examination of the assessment itself satisfies the court that if the defect referred to did not exist, the assessment under the testimony presented on this hearing seems to have been made without the application of any methodical system, or the intervention of any legal or equitable principle, upon which it could be successfully defended as the resultant judgment of disinterested and capable men.

[2] There may be reasons why lots within the zone of this assessment, presenting apparently no physical difference requiring discrimination, or a difference in treatment in method and amount, should be treated as

[Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 280-295; Dec. Dig. § 95.*] 2. DEDICATION_(§ 19*) — STREETS - SALE ACCORDING TO PLAT.

such owner of lots by reference to said map, streets so delineated so far as the title of such constitute a dedication to public use of the owner to the lands plotted thereon extends.

[Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.*] 3. DEDICATION (§ 50*)- EXTENT - SALE ACCORDING TO PLAT-RAILROAD CROSSING.

Where, on such a map, a railroad is delineated as crossing a street or streets shown thereon, the portions of such streets included within the lines of the railroad are not reserved from dedication as highways; but the natural inference is that a crossing of the railroad by the street is intended.

[Ed. Note. For other cases, see Dedication,

Cent. Dig. §§ 91-94; Dec. Dig. § 50.*]
4. EVIDENCE (§ 73*)-CORPORATE ACTS-PRE-

SUMPTION.

Where the owner of the lands delineated on said map was a corporation, proof that such map remained on file for many years without various deeds by reference thereto, indicates, disclaimer by the corporation, and that it made at least prima facie, that the filing and use of

the map as a sales map was authorized by the corporation.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 94; Dec. Dig. § 73.*]

5. MUNICIPAL CORPORATIONS (§ STREETS-VACATION.

657*) The supplement of 1906 to the Road Act (P. L. 1906, p. 97; 4 Comp. St. 1910, p. 4467) is not effective to work a vacation of a road or street for 20 years' nonuser, so long as any part of such street has been used by the public within the statutory period.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 844, 1429, 1496; Dec. Dig. 657.*]

Appeal from Supreme Court.

Ejectment by the Board of Trustees of the Village of Ridgefield Park against the New York, Susquehanna & Western Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed.

Collins & Corbin, of Jersey City, for appellant. William J. Morrison, Jr., of Ridgefield Park, for appellee.

PARKER, J. The suit was in ejectment for the purpose of subjecting to public use as a street a tract of land occupied by the tracks and part of the station approaches of the defendant, lying between the lines of Mt. Vernon street, formerly called Fourth street, in Ridgefield Park. The fundamental question is one of dedication and its efficacy, and, if dedication is made out, a further question arises whether there was a vacation on account of nonuser of the said street or the portion claimed as a highway within the terms of a statute of 1906 hereafter to be discussed.

The claim of dedication rests mainly upon the making and filing by a land company of a sales map in 1867, and the selling of lots by reference thereto. There was no formal acceptance until 1907; but there seems to be no limitation generally on the time of acceptance and user by the public. Freeholders v. Sharpless, 83 N. J. Law, 443, 85 Atl. 222; South Amboy v. N. Y. & L. B. R. R. Co., 66 N. J. Law, 623, 50 Atl. 368. Indeed, the formal acceptance was unnecessary, as the bringing of the action is a sufficient acceptance. Atlantic City v. Groff, 64 N. J. Law, 527, 45 Atl. 916.

appears as a highway, running westerly from Overpeck avenue to the Hackensack river, a distance of about two-thirds of a mile, paralleled by other streets, and intersected by various cross-streets traversing the tract, which has grown into a populous settlement. Defendant apparently claims paper title under a deed of the land company to defendant's predecessor, the New Jersey Midland Railway Company, in October, 1870, describing a strip 66 feet wide, being 33 feet wide on each side of the located center line of the railroad, and running from the north to the south boundary of the land company's tract. No streets are mentioned, and the map is not referred to; but it had been on file for three years, and deeds had been made by it to other purchasers.

It is urged that the trial court should have nonsuited, or should have ordered judgment for defendant, on several grounds. With respect to the motion to nonsuit, it may as well be said that it was merely suggested when plaintiff rested, and reserved until the end of the trial, at which point the whole case was reserved for counsel to submit briefs; the practical effect of all which was to merge the motion to nonsuit into a motion for judgment on the whole case. The real question, therefore, is whether the court erred in giving judgment for plaintiff.

[1] It is first urged that plaintiff failed to prove such title as would support the judgment. It was not denied by plaintiff that defendant had title to the land itself for railroad purposes, under the deed already referred to; the real question being, of course, the existence of a public easement for a street. It is claimed by defendant that plaintiff failed to trace its paper title back to the proprietors, or to some one shown to have been in possession of the premises. But it plainly appeared that defendant's title, as well as plaintiff's, was derived from the land company, and it is sufficient to trace the plaintiff's title back to a common source, provided defendant does not claim by any other title, and plaintiff's title so derived is superior. 10 Enc. Law (2d Ed.) 491; 15 Cyc. 41, 47; Gaines v. New Orleans, 6 Wall, 642, 18 L. Ed. 950; Union Consol. Mining Co. v. Taylor, 10 Otto (100 U. S.) 37, 25 L. Ed. 541; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049.

The case was tried without a jury. The evidence shows that about 1867 a large tract of land embracing the premises in question was assembled by several purchases, and deeds were made to the Ridgefield Land & Building Company, a corporation of this state; that in that year a map of the property bearing the company's name was made and filed in the county clerk's office; and that the deeds made by said company for lots sold have principally or entirely been by reference to this map, or to a second one substantially identical with it, under the same name, and dated in 1870. On both maps Fourth street

We may add there was evidence of acts of ownership by the land company quite sufficient to support a finding that it was in lawful possession at the time the maps were made, and that the absence of more ample evidence on the point is without doubt due to the failure of defendant to raise this question specifically at the trial, or until the written briefs came in thereafter. An examination of the printed book leads to the conclusion that there was no serious question raised at the trial as to the ownership and posses

sion of the land company, but that both par- not laid longitudinally in any street. It ties claimed under that source of title. crosses Fourth and Fifth streets, and the

The next and principal argument is that no only proper construction to put upon such dedication of Fourth street was shown.

indications is that of the ordinary case of a railroad crossing a public road; the user of the land being common to the railroad and the public.

[2] We conceive that few propositions of law are better settled in this state than that, when the owner of a tract of land maps it into blocks, lots, and streets for purposes of [4] It is further argued that the making sale, files his map in a public record office, and and filing of the map was not brought home sells lots by reference to such map, he there- to the land company as a corporate act. If by dedicates the streets shown thereon to the it be intended to argue that the plaintiff was public so far as his ownership then extends. required to show, by the minutes of the comPope v. Union, 18 N. J. Eq. 282; Trustees v. pany or some other competent evidence, the Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 696; adoption of the map by formal resolution Attorney General v. M. & E. R. R. Co., 19 N. of the directors of the company, we cannot J. Eq. 386; Clark v. Elizabeth, 40 N. J. Law, assent to any such proposition, which would 172; McAndrews & Forbes Co. v. Camden, unsettle land titles all over the state. On 78 N. J. Eq. (8 Buch.) 244, 78 Atl. 232; Cam- the contrary, a map filed among the public den v. McAndrews & Forbes Co., 88 Atl. 1034 land records as that of a specified owner, (ejectment), June term, 1913. And if a street and allowed to remain there for years, not be shown on the map as extending to the only without dissent of that owner, but actuwater, the dedication will carry it to any ally used by it in the sale of lots and the new water line created by filling, etc. (Hobok-drawing of deeds therefor, must be consideren Co. v. Hoboken, 36 N. J. Law, 540; Mc-ed, prima facie at least, as duly authorizAndrews & Forbes Co. v. Camden, supra), ed by such owner. and, when a street has once been dedicated, the right of the public to appropriate it to their use at any time when their wants or convenience require it, cannot be defeated by any subsequent act of the dedicator, or of those claiming under him (McAndrews & Forbes Co. v. Camden, supra; Freeholders v. Sharpless, 83 N. J. Law, 443, 85 Atl. 222).

We conclude, then, that the trial judge was justified in finding that the whole of Fourth street had been legally dedicated by the land company as a public street, at or before the time the railroad deed was made, subject to use of part thereof as a railroad crossing; that as a result such deed conveyed no exclusive right as against the public, but that, upon later acceptance of the dedication, the public was entitled to use the street across the railroad; and that such acceptance ap

[3] The defendant does not seriously question these rules of law, but seems to rely on the fact that on the map of 1867 a strip of land is laid down with the conventional in-peared. dications of a railroad track a short distance [5] This was the result reached upon the west of where the defendant's present right original argument. The case was reserved of way would fall on the map, and marked for reargument in view of the statute of 1906 "Cherry Hill Railroad," and on the map of (P. L. p. 97; C. S. 4467, § 82g), providing 1870 the marking is changed to "N. J. Mid- that: "Whenever the owner or owners of land Railway & New York & Oswego Mid- any land situated in any township of this land Railroad" (the predecessors of defend- state shall have heretofore caused the same ant). The claim is that this showed a dedica- to be laid out by a map or plan showing a tion to railroad purposes, which negatives the road or street, and shall have caused the idea of a street at that point. It seems to be same to be recorded without having actually conceded that the location is different; but opened said road or street, and without havit is claimed that a reservation existed which ing had said road or street accepted by the shifted to the actual location of the railroad township committee as provided by the 82d when constructed. We are not called upon to section of the act (the Road Act) to which decide whether such a reservation would this is a supplement, and shall have afterso shift, for in our opinion the original reser- wards sold and conveyed the land so laid vation from dedication is not made out. Ay-out as a road or street to some other person ers v. Penna. R. R., 48 N. J. Law, 44, 3 Atl. 885, 57 Am. Rep. 538, is relied on; but in that case the railroad was laid longitudinally through the street, known as Railroad avenue in Rahway. Such a condition is familiar; it exists, for example, in Burlington, and in Railroad avenue in Newark, and was common in the earlier days of railroading. But we think it could never be rightly claimed that when, on such a plat, streets are shown crossing the railroad, one side of the town is to be held as cut off by the railroad from

or persons without having actually opened the same, and said land shall have remained unopened as a road or street by the subsequent owner or owners thereof and unused as such for a period of over twenty years, the right, if any, to have the said land opened and used as a public road or street, without the consent of the owner or owners of the fee, shall cease and determine, and the said land is hereby declared to be free and discharged from any easement or servitude as a public highway."

whether this act applied, and was controlling, especially in view of changes in the corporate character of the municipality since 1867.

Vredenburgh, Wall & Carey, of Jersey City, for appellants. William J. Morrison, Jr., of Ridgefield Park, for respondent.

For this reason, and the reasons set forth in the opinion in the Susquehanna Case, the judgment brought up will be affirmed.

It is not necessary to consider the quesPER CURIAM. The features of this case are tions whether the statute applies to lands substantially identical with those in the case which formed part of any township at the of Board of Trustees v. N. Y., Susq. & Western time of the dedicating act, and whether, if R. R. Co., 89 Atl. 773. just decided. The locus in quo in this case immediately adjoins on the the conditions laid down in the act are oth-east that involved in the other case. Defenderwise met, the statute takes effect, without ant's chain of title is somewhat different, but regard to the character of the government depends, also, on the ownership of the Ridgewhich was exercised over the township when field Land & Building Company, as in the other case, and several of the mesne conveyances of the 20 years began to run, because we consid- land including that in question refer specificaler that the statute cannot help the defend- ly to Fourth street as an existing highway. ant in this case for two reasons: First, it clearly proved in the present case than in the Consequently the dedication is, if possible, more applies only where the land remains unopen- other. ed as a street, and unused as such, and we think there is some evidence showing some user of this particular piece of land within the 20-year limit after the making of the map. But another and graver reason is that this statute applies, not to parts, small or large, of a street shown on a plan or map, but to the whole of it, and so, when any part of it is used, the statute has no application. This is the purport of our decision in South 1. WILLS (§§ 55, 302*)—EXECUTION-TESTAAmboy v. N. Y. & L. B. Railroad, following our earlier decision in Humphreys v. Woodstown, 48 N. J. Law, 588, 7 Atl. 301, where we had under consideration the construction to be given to section 78 of the act to which the present one is a supplement (Comp. Stat. p. 4462). That section provides "that all public roads having been laid out by surveyors or otherwise and not opened, worked or used for more than twenty years next before the 24th day of March, 1859, shall be con

sidered, and they are, hereby vacated." This act was passed in 1877. It is quite similar to that now under consideration, so far as the point which we have been discussing is concerned. We held, in the cases referred to, that this provision refers only to cases where no part of the road laid out has been opened and used. It is undenied or amply proved in the present case that parts of the road on each side of the locus in quo as shown on the original map are now and have always been in the enjoyment of the public as a public highway. The act of 1906 being in pari materia to section 78, the decision in the South Amboy Case should be deemed controlling, and consequently the judgment brought up will be affirmed.

(35 N. J. L. 385)

BOARD OF TRUSTEES OF VILLAGE OF
RIDGEFIELD PARK v. WEST SHORE
R. CO. et al.

(82 N. J. Eq. 591)

In re EATLEY'S WILL. (Prerogative Court of New Jersey. 1913.)

MENTARY
CIENCY.

Dec. 27,

CAPACITY-EVIDENCE- - SUFFI

Evidence on the probate of a will held to show that the will was properly executed; that the testatrix was competent to make it; and that she executed it with full knowledge of its Contents and with an appreciation of its legal

effect.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 137-158, 161, 575, 581, 700-710; Dec. Dig. 88 55, 302.*]

2. WILLS (§ 166*)-UNDUE INFLUENCE-EVIDENCE-SUFFICIENCY.

of a will, held insufficient to show that its exEvidence, in a proceeding for the probate ecution was procured by undue influence.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*] 3. WILLS (§ 163*)—UNDUE INFLUENCE-CONFIDENTIAL RELATIONS.

of about 50 years of age, suffering from a fatal The relation between testatrix, a widow illness, and her sister, the beneficiary, with whom she lived, testatrix being free to visit other relatives, some of whom were at enmity with the beneficiary, who nursed and ministered to her, was not a confidential relation such as would, with other slight circumstances, create a presumption of undue influence.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig. § 163.*] 4. WILLS (§ 82*) - VALIDITY -"INOFFICIOUS

TESTAMENT.

Where testatrix's sister, with whom she made her home, nursed and cared for her during her illness, while her daughter, who was married and resided across the continent, though affectionate, was lax, if not indifferent, about writing, the testatrix's will leaving her property, consisting of a house and lot, to the sister was not an "inofficious testament."

(Court of Errors and Appeals of New Jersey. Diz. § 203; Dec. Dig. § S2.*

[Ed. Note. For other cases, see Wills, Cent.

Jan. 29, 1914.)

Appeal from Supreme Court.

Ejectment by the Board of Trustees of the Village of Ridgefield Park against the West Shore Railroad Company and others. From judgment for plaintiff, defendants appeal. Affirmed.

For other definitions, see Words and Phrases, vol. 4, p. 3634.]